BAYAN MUNA, as represented by G.R. No.

159618
Rep. SATUR OCAMPO, Rep. The Facts
CRISPIN BELTRAN, and Rep. Present:
LIZA L. MAZA, Petitioner Bayan Muna is a duly registered party-list group established to
Petitioner, CORONA, C.J., represent the marginalized sectors of society. Respondent Blas F. Ople, now
CARPIO, deceased, was the Secretary of Foreign Affairs during the period material to this
CARPIO MORALES,
case. Respondent Alberto Romulo was impleaded in his capacity as then Executive
VELASCO, JR.,
NACHURA, Secretary.[2]
LEONARDO-DE CASTRO,
- versus - BRION, Rome Statute of the International Criminal Court
PERALTA,
BERSAMIN, Having a key determinative bearing on this case is the Rome
DEL CASTILLO, Statute[3] establishing the International Criminal Court (ICC) with the power to
ABAD, exercise its jurisdiction over persons for the most serious crimes of international
VILLARAMA, JR., concern x x x and shall be complementary to the national criminal
PEREZ,
ALBERTO ROMULO, in his jurisdictions.[4] The serious crimes adverted to cover those considered grave under
MENDOZA, and
capacity as Executive Secretary, and SERENO, JJ. international law, such as genocide, crimes against humanity, war crimes, and
BLAS F. OPLE, in his capacity as crimes of aggression.[5]
Secretary of Foreign Affairs, Promulgated:
Respondents. On December 28, 2000, the RP, through Charge dAffaires Enrique A.
February 1, 2011 Manalo, signed the Rome Statute which, by its terms, is subject to ratification,
x-----------------------------------------------------------------------------------------x 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
DECISION
ratification, approval and concurrence process. The Philippines is not among the
VELASCO, JR., J.:
92.
The Case
RP-US Non-Surrender Agreement
[1]
This petition for certiorari, mandamus and prohibition under Rule 65
assails and seeks to nullify the Non-Surrender Agreement concluded by and On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy
between the Republic of the Philippines (RP) and the United States of America Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of
(USA).
the non-surrender bilateral agreement (Agreement, hereinafter) between the USA
and the RP.
Via Exchange of Notes No. BFO-028-03[7] 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 petitioners 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 Agreementis 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]
MAIN ISSUES: W/N THE AGREEMENT PARTAKES THE NATURE OF TREATY
THAT REQUIRES
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 petitioners legal standing.
The Courts 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 partys 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, petitioners 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, petitioners 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 States obligation to the
community of nations.
At any event, the primordial importance to Filipino citizens in general of the
issue at hand impels the Court to brush aside the procedural barrier posed by the
traditional requirement of locus standi, as we have done in a long line of earlier
cases, notably in the old but oft-cited emergency powers cases[22] and Kilosbayan
v. Guingona, Jr.[23] In cases of transcendental importance, we wrote again in Bayan
v. Zamora,[24] The Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming the right of judicial
review.
Moreover, bearing in mind what the Court said in Taada 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
Petitioners 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 contentionperhaps taken unaware of certain well-recognized
international doctrines, practices, and jargonsis 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-028-03be it
viewed as the Non-Surrender Agreement itself, or as an integral instrument of
acceptance thereof or as consent to be boundis a recognized mode of concluding a
legally binding international written contract among nations.
Senate Concurrence Not Required
TYPES OF TREATIES
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 servanda[42] 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. in Bayan,[49] given recognition to the obligatory effect of executive agreements
x x x They cover such subjects as the inspection of vessels, navigation without the concurrence of the Senate:
dues, income tax on shipping profits, the admission of civil air craft,
custom matters and commercial relations generally, international claims,
x x x [T]he right of the Executive to enter into binding agreements
postal matters, the registration of trademarks and copyrights, etc. x x x
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
And lest it be overlooked, one type of executive agreement is a treaty- consular relations, most favored-nation rights, patent rights, trademark
authorized[44] or a treaty-implementing executive agreement,[45] which necessarily and copyright protection, postal and navigation arrangements and the
would cover the same matters subject of the underlying treaty. settlement of claims. The validity of these has never been seriously
questioned by our courts.
But over and above the foregoing considerations is the fact thatsave for the
situation and matters contemplated in Sec. 25, Art. XVIII of the
The Agreement Not in Contravention of the Rome Statute
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
It is the petitioners next contention that the Agreement undermines the
treaty. What the Constitution merely prescribes is that treaties need the concurrence
establishment of the ICC and is null and void insofar as it unduly restricts the ICCs
of the Senate by a vote defined therein to complete the ratification process.
jurisdiction and infringes upon the effectivity of the Rome Statute. Petitioner posits
that the Agreement was constituted solely for the purpose of providing individuals
Petitioners reliance on Adolfo[47] is misplaced, said case being inapplicable
or groups of individuals with immunity from the jurisdiction of the ICC; and such
owing to different factual milieus. There, the Court held that an executive
grant of immunity through non-surrender agreements allegedly does not
agreement cannot be used to amend a duly ratified and existing treaty, i.e., the Bases
legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes that
Treaty. Indeed, an executive agreement that does not require the concurrence of the
state parties with non-surrender agreements are prevented from meeting their
Senate for its ratification may not be used to amend a treaty that, under the
obligations under the Rome Statute, thereby constituting a breach of Arts.
Constitution, is the product of the ratifying acts of the Executive and the
27,[50] 86,[51] 89[52] and 90[53] thereof.
Senate. The presence of a treaty, purportedly being subject to amendment by an
Petitioner stresses that the overall object and purpose of the Rome Statute is
executive agreement, does not obtain under the premises.
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
Considering the above discussion, the Court need not belabor at length the
agreementlike the non-surrender agreementthat precludes the ICC from exercising
third main issue raised, referring to the validity and effectivity of
its complementary function of acting when a state is unable to or unwilling to do
the Agreement without the concurrence by at least two-thirds of all the members of
so, defeats the object and purpose of the Rome Statute.
the Senate. The Court has, in Eastern Sea Trading,[48] as reiterated
PH IS ONLY SIGNATORY TO ICC BUT LACKS RATIFICATION
 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 petitioners 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. 1[55] of the Rome Statute.
Of particular note is the application of the principle of ne bis in idem[56] 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 RPs 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, petitioners suggestionthat 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 Statutehas
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, petitioners 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 petitioners
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 jurisdictionto the extent agreed uponto subjects of
another State due to the recognition of the principle of extraterritorial
immunity. What the Court wrote in Nicolas v. Romulo[59]a case involving the
implementation of the criminal jurisdiction provisions of the RP-US Visiting
Forces Agreementis 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 States 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 petitioners 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 Philippinesof 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 countrys
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
Petitioners final point revolves around the necessity of the Senates
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
Constitutionthe 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 Presidentby ratifying, thru her deputies, the
non-surrender agreementdid 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
latters consent to the ratification of the treaty, refuse to ratify it.[68] This prerogative,
the Court hastened to add, is the Presidents 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 States 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 USnational 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 Philippineswithout the consent of the USfrom 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.
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
Courts decision in Nicolas v. Romulo[74] 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--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 views 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]
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 Assuming arguendo that the report has weight, still, the perceived gaps in
of war and with specific intent to destroy, in whole or in substantial part, the definitions of the crimes are nonexistent. To highlight, the table below shows
a national, ethnic, racial or religious group as such
the definitions of genocide and war crimes under the Rome Statute vis--vis the
(1) kills members of that group;
(2) causes serious bodily injury to members of that group; definitions under US laws:
(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 Rome Statute US Law
the physical destruction of the group in whole or in part; Article 6 1091. Genocide
(5) imposes measures intended to prevent births within the group; or Genocide
(6) transfers by force children of the group to another group; For the purpose of this Statute, genocide means (a) Basic Offense Whoever, whether in the time
shall be punished as provided in subsection (b).[81] any of the following acts committed with intent of peace or in time of war and with specific
to destroy, in whole or in part, a national, intent to destroy, in whole or in substantial part,
ethnical, racial or religious group, as such: a national, ethnic, racial or religious group as
Arguing further, another view has been advanced that the current US laws (a) Killing members of the group; such
do not cover every crime listed within the jurisdiction of the ICC and that there is (b) Causing serious bodily or mental harm to (1) kills members of that group;
a gap between the definitions of the different crimes under the US laws versus the members of the group; (2) causes serious bodily injury to members of
(c) Deliberately inflicting on the group that group;
Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. conditions of life calculated to bring about(3) causes the permanent impairment of the
Dallas, entitled On Trial: The US Military and the International Criminal Court, as its physical destruction in whole or in part; mental faculties of members of the group
its basis. (d) Imposing measures intended to prevent through drugs, torture, or similar
births within the group; techniques;
(e) Forcibly transferring children of the group to
(4) subjects the group to conditions of life that
At the outset, it should be pointed out that the report used may not have any weight another group. are intended to cause the physical
or value under international law. Article 38 of the Statute of the International Court destruction of the group in whole or in
of Justice (ICJ) lists the sources of international law, as follows: (1) international part;
(5) imposes measures intended to prevent births
conventions, whether general or particular, establishing rules expressly recognized within the group; or
by the contesting states; (2) international custom, as evidence of a general practice (6) transfers by force children of the group to
accepted as law; (3) the general principles of law recognized by civilized nations; another group;
and (4) subject to the provisions of Article 59, judicial decisions and the teachings shall be punished as provided in subsection (b).
Article 8 (a) Definition As used in this Section the term
of the most highly qualified publicists of the various nations, as subsidiary War Crimes war crime means any conduct
means for the determination of rules of law. The report does not fall under any of 2. For the purpose of this Statute, war crimes (1) Defined as a grave breach in any of the
the foregoing enumerated sources. It cannot even be considered as the teachings of means: international conventions signed
highly qualified publicists. A highly qualified publicist is a scholar of public (a) Grave breaches of the Geneva Conventions at Geneva12 August 1949, or any
of 12 August 1949, namely, any of the following protocol to such convention to which
international law and the term usually refers to legal scholars or academic acts against persons or property protected under the United States is a party;
writers.[82] It has not been shown that the authors[83] of this report are highly the provisions of the relevant Geneva (2) Prohibited by Article 23, 25, 27 or 28 of
qualified publicists. Convention: x x x[84] the Annex to the Hague Convention IV,
(b) Other serious violations of the laws and Respecting the Laws and Customs of
customs applicable in international armed War on Land, signed 18 October 1907;
conflict, within the established framework of
 international law, namely, any of the following (3) Which constitutes a grave breach of Nonetheless, despite the lack of actual domestic legislation, the US notably
acts: common Article 3 (as defined in
xxxx subsection [d][85]) when committed in the
follows the doctrine of incorporation. As early as 1900, the esteemed Justice Gray
(c) In the case of an armed conflict not of an context of and in association with an in The Paquete Habana[89] case already held international law as part of the law of
international character, serious violations of armed conflict not of an international the US, to wit:
article 3 common to the four Geneva character; or
Conventions of 12 August 1949, namely, any of (4) Of a person who, in relation to an armed
the following acts committed against persons conflict and contrary to the provisions of
International law is part of our law, and must be ascertained and
taking no active part in the hostilities, including the Protocol on Prohibitions or administered by the courts of justice of appropriate jurisdiction as often as
members of armed forces who have laid down Restrictions on the Use of Mines, Booby- questions of right depending upon it are duly presented for their determination.
their arms and those placed hors de combat by Traps and Other Devices as amended at For this purpose, where there is no treaty and no controlling executive or
sickness, wounds, detention or any other cause: Geneva on 3 May 1996 (Protocol II as legislative act or judicial decision, resort must be had to the customs and usages
xxxx amended on 3 May 1996), when the of civilized nations, and, as evidence of these, to the works of jurists and
(d) Paragraph 2 (c) applies to armed conflicts United States is a party to such Protocol, commentators who by years of labor, research, and experience have made
not of an international character and thus does willfully kills or causes serious injury to themselves peculiarly well acquainted with the subjects of which they treat. Such
not apply to situations of internal disturbances civilians.[86] works are resorted to by judicial tribunals, not for the speculations of their authors
and tensions, such as riots, isolated and sporadic
concerning what the law ought to be, but for the trustworthy evidence of what the
acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and law really is.[90] (Emphasis supplied.)
customs applicable in armed conflicts not of an
international character, within the established
framework of international law, namely, any of Thus, a person can be tried in the US for an international crime despite the
the following acts: x x x.
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
Evidently, the gaps pointed out as to the definition of the crimes are not present. In to the law of nations or international law.[93] Indeed, the Court in U.S. v.
fact, the report itself stated as much, to wit: Hudson only considered the question, whether the Circuit Courts of the United
Few believed there were wide differences between the crimes under the
States can exercise a common law jurisdiction in criminal cases.[94] Stated
jurisdiction of the Court and crimes within the Uniform Code of Military Justice otherwise, there is no common law crime in the US but this is considerably different
that would expose US personnel to the Court. Since US military lawyers were from international law.
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 The US doubtless recognizes international law as part of the law of the land,
and gave strength to complementarity for the US. Small areas of potential gaps necessarily including international crimes, even without any local statute.[95] In fact,
between the UCMJ and the Rome Statute, military experts argued, could be
addressed through existing military laws.[87] x x x
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
The report went on further to say that [a]ccording to those involved, the Quirin[96] the US Supreme Court noted that [f]rom the very beginning of its history
elements of crimes laid out in the Rome Statute have been part of US military this Court has recognized and applied the law of war as including that part of the
doctrine for decades.[88] Thus, the argument proffered cannot stand. 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 194[115] 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.
ENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088
This is a petition for mandamus filed by petitioners to compel the
REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT Office of the Executive Secretary and the Department of Foreign Affairs to transmit
OF THE INTERNATIONAL Present:
the signed copy of the Rome Statute of the International Criminal Court to the
CRIMINAL COURT, TASK FORCE
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J., Senate of the Philippines for its concurrence in accordance with Section 21, Article
FAMILIES OF VICTIMS OF Puno,
VII of the 1987 Constitution.
INVOLUNTARY DISAPPEARANCES, Panganiban,
BIANCA HACINTHA R. ROQUE, Quisumbing,
HARRISON JACOB R. ROQUE, Ynares-Santiago, The Rome Statute established the International Criminal Court which shall have the
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez, power to exercise its jurisdiction over persons for the most serious crimes of
LEAVIDES G. DOMINGO, EDGARDO *Carpio,
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez, international concern xxx and shall be complementary to the national criminal
CELESTE CEMBRANO, LIZA ABIERA, *Corona, jurisdictions.[1] Its jurisdiction covers the crime of genocide, crimes against
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr., humanity, war crimes and the crime of aggression as defined in the Statute.[2] The
FAGELA, and ROMEL BAGARES, Azcuna, Statute was opened for signature by all states in Rome on July 17, 1998 and had
Petitioners, Tinga,
Chico-Nazario, and remained open for signature until December 31, 2000 at the United Nations
- versus - Garcia, JJ. Headquarters in New York. The Philippines signed the Statute on December 28,

OFFICE OF THE EXECUTIVE 2000 through Charge d Affairs Enrique A. Manalo of the Philippine Mission to the
SECRETARY, represented by Promulgated: United Nations.[3] Its provisions, however, require that it be subject to ratification,
HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN acceptance or approval of the signatory states.[4]
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
Respondents. Petitioners filed the instant petition to compel the respondents the Office of the
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Executive Secretary and the Department of Foreign Affairs to transmit the signed

DECISION text of the treaty to the Senate of the Philippines for ratification.

PUNO J.: 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 executive branch, in this case, the Rome Statute. The petition seeks to order the
outcome of the controversy as to assure that concrete adverseness which sharpens executive branch to transmit the copy of the treaty to the Senate to allow it to
the presentation of issues upon which the court so largely depends for illumination exercise such authority. Senator Pimentel, as member of the institution, certainly
of difficult constitutional questions.[10] has the legal standing to assert such authority of the Senate.

We find that among the petitioners, only Senator Pimentel has the legal standing to We now go to the substantive issue.
file the instant suit. The other petitioners maintain their standing as advocates and
The core issue in this petition for mandamus is whether the Executive Secretary
defenders of human rights, and as citizens of the country. They have not shown,
and the Department of Foreign Affairs have a ministerial duty to transmit to the
however, that they have sustained or will sustain a direct injury from the non-
Senate the copy of the Rome Statute signed by a member of the Philippine Mission
transmittal of the signed text of the Rome Statute to the Senate. Their contention
to the United Nations even without the signature of the President.
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 We rule in the negative.
national criminal laws and courts. Sufficient remedies are available under our
In our system of government, the President, being the head of state, is regarded as
national laws to protect our citizens against human rights violations and petitioners
the sole organ and authority in external relations and is the countrys sole
can always seek redress for any abuse in our domestic courts.
representative with foreign nations.[12] As the chief architect of foreign policy, the
As regards Senator Pimentel, it has been held that to the extent the powers of President acts as the countrys mouthpiece with respect to international affairs.
Congress are impaired, so is the power of each member thereof, since his office Hence, the President is vested with the authority to deal with foreign states and
confers a right to participate in the exercise of the powers of that governments, extend or withhold recognition, maintain diplomatic relations, enter
institution.[11] Thus, legislators have the standing to maintain inviolate the into treaties, and otherwise transact the business of foreign relations.[13] In the realm
prerogatives, powers and privileges vested by the Constitution in their office and of treaty-making, the President has the sole authority to negotiate with other states.
are allowed to sue to question the validity of any official action which they claim
Nonetheless, while the President has the sole authority to negotiate and enter
infringes their prerogatives as legislators. The petition at bar invokes the power of
into treaties, the Constitution provides a limitation to his power by requiring the
the Senate to grant or withhold its concurrence to a treaty entered into by 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 nations 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 states 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 states
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. L-14279 October 31, 1961
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners,
vs.
EASTERN SEA TRADING, respondent.
Office of the Solicitor General for petitioners.
Valentin Gutierrez for respondent.
CONCEPCION, J.:
Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the
Commissioner of Customs.
Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which
arrived at the Port of Manila from August 25 to September 7, 1954. Some shipments came from
Japan and others from Hong Kong. In as much as none of the shipments had the certificate required
by Central Bank Circulars Nos. 44 and 45 for the release thereof, the goods thus imported were
seized and subjected to forfeiture proceedings for alleged violations of section 1363(f) of the Revised
Administrative Code, in relation to the aforementioned circulars of the Central Bank. In due course,
the Collector of Customs of Manila rendered a decision on September 4, 1956, declaring said goods
forfeited to the Government and — the goods having been, in the meantime, released to the
consignees on surety bonds, filed by the same, as principal, and the Alto Surety & Insurance Co.,
Inc., as surety, in compliance with orders of the Court of First Instance of Manila, in Civil Cases Nos.
23942 and 23852 thereof — directing that the amounts of said bonds be paid, by said principal and
surety, jointly and severally, to the Bureau of Customs, within thirty (30) days from notice.
On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs on
December 27, 1956. Subsequently, the consignee sought a review of the decision of said two (2)
officers by the Court of Tax Appeals, which reversed the decision of the Commissioner of Customs
and ordered that the aforementioned bonds be cancelled and withdrawn. Hence, the present petition
of the Commissioner of Customs for review of the decision of the Court of Tax Appeals.
The latter is based upon the following premises, namely: that the Central Bank has no authority to
regulate transactions not involving foreign exchange; that the shipments in question are in the nature
of "no-dollar" imports; that, as such, the aforementioned shipments do not involve foreign exchange;
that, insofar as a Central Bank license and a certificate authorizing the importation or release of the
goods under consideration are required by Central Bank Circulars Nos. 44 and 45, the latter are null
and void; and that the seizure and forfeiture of the goods imported from Japan cannot be justified
under Executive Order No. 328,1 not only because the same seeks to implement an executive
agreement2 — extending the effectivity of our3 Trades and Financial Agreements4 with Japan —
which (executive agreement), it believed, is of dubious validity, but, also, because there is no
governmental agency authorized to issue the import license required by the aforementioned
executive order.
The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned
Circulars Nos. 44, and 45 have already been passed upon and repeatedly upheld by this Court
(Pascual vs. Commissioner of Customs, L-10979 [June 30, 1959]; Acting Commissioner of Customs
vs. Leuterio, L-9142 [October 17, 1959] Commissioner of Customs vs. Pascual, L-9836 [November
18, 1959]; Commissioner of Customs vs. Serree Investment Co., L-12007 [May 16, 1960];
Commissioner of Customs vs. Serree Investment Co., L-14274 [November 29, 1960]), for the reason
that the broad powers of the Central Bank, under its charter, to maintain our monetary stability and
to preserve the international value of our currency, under section 2 of Republic Act No. 265, in relation
to section 14 of said Act — authorizing the bank to issue such rules and regulations as it may consider
necessary for the effective discharge of the responsibilities and the exercise of the powers assigned
to the Monetary Board and to the Central Bank — connote the authority to regulate no-dollar imports,
owing to the influence and effect that the same may and do have upon the stability of our peso and
its international value.
The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to
be implemented by Executive Order No. 328, owing to the fact that our Senate had not concurred in
the making of said executive agreement. The concurrence of said House of Congress is required by
our fundamental law in the making of "treaties" (Constitution of the Philippines, Article VII, Section
10[7]), which are, however, distinct and different from "executive agreements," which may be validly
entered into without such concurrence.
Treaties are formal documents which require ratification with the approval of two thirds of the
Senate. Executive agreements become binding through executive action without the need of
a vote by the Senate or by Congress.
xxx xxx xxx
. . . the right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.
xxx xxx xxx
Agreements with respect to the registration of trade-marks have been concluded by the
Executive with various countries under the Act of Congress of March 3, 1881 (21 Stat. 502).
Postal conventions regulating the reciprocal treatment of mail matters, money orders, parcel
post, etc., have been concluded by the Postmaster General with various countries under
authorization by Congress beginning with the Act of February 20, 1792 (1 Stat. 232, 239).
Ten executive agreements were concluded by the President pursuant to the McKinley Tariff
Act of 1890 (26 Stat. 567, 612), and nine such agreements were entered into under the
Dingley Tariff Act 1897 (30 Stat. 151, 203, 214). A very much larger number of agreements,
along the lines of the one with Rumania previously referred to, providing for most-favored-
 nation treatment in customs and related matters have been entered into since the passage
of the Tariff Act of 1922, not by direction of the Act but in harmony with it.
xxx xxx xxx
International agreements involving political issues or changes of national policy and those
involving international arrangements of a permanent character usually take the form of
treaties. But international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a more or
less temporary nature usually take the form of executive agreements.
xxx xxx xxx
Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39 Columbia
Law Review, pp. 753-754) (See, also, U.S. vs. Curtis-Wright Export Corporation, 299 U.S.
304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S.
203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288; Yale Law Journal, Vol. 15, pp. 1905-
1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [Revised
Edition], Vol. 2, pp. 1405, 1416-1418; Willoughby on the U.S. Constitutional Law, Vol. I [2d
ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth,
International Law Digest, Vol. V, pp. 390-407). (Emphasis supplied.)
In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his
work on "The Constitutionality of Trade Agreement Acts":
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.

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
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT,
BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente),
BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.),
DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG
PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and
the PUBLIC INTEREST LAW CENTER, petitioners,
vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN
AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE
SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER
AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR
FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR
RODOLFO BIAZON, and SENATOR FRANCISCO TATAD,
respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA),
EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L.
SABIO, AND RAMON A. GONZALES, petitioners, vs. HON.
RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO
MERCADO, as Secretary of National Defense, and HON.
DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA
III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B.
ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO,
MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE
and RODOLFO G. BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National
President, Jose Aguila Grapilon, petitioners, vs. JOSEPH
EJERCITO ESTRADA, in his capacity as President, Republic of
the Philippines, and HON. DOMINGO SIAZON, in his capacity as
Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-
AVENCEA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P.
ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG,
KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
(MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B.
FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G.
BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL,
SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION
TO THE VISITING FORCES AGREEMENT (VFA), respondents.
DECISION
BUENA, J.:
 Confronting the Court for resolution in the instant consolidated petitions for certiorari
and prohibition are issues relating to, and borne by, an agreement forged in the turn of
the last century between the Republic of the Philippines and the United States of
America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a
Military Bases Agreement which formalized, among others, the use of installations in the
Philippine territory by United States military personnel. To further strengthen their
defense and security relationship, the Philippines and the United States entered into a
Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to
respond to any external armed attack on their territory, armed forces, public vessels, and
aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991,
the Philippines and the United States negotiated for a possible extension of the military
bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed
RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have
extended the presence of US military bases in the Philippines. [2] With the expiration of
the RP-US Military Bases Agreement, the periodic military exercises conducted between
the two countries were held in abeyance. Notwithstanding, the defense and security
relationship between the Philippines and the United States of America continued
pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by
Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the
complementing strategic interests of the United States and the Philippines in the Asia-
Pacific region. Both sides discussed, among other things, the possible elements of the
Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led
to a consolidated draft text, which in turn resulted to a final series of conferences and
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 recommending the concurrence of the Senate to the VFA and the creation of a
[8]
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;
Article VII
Importation and Exportation
(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 others 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.
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:
I show not only that the law is invalid, but also that he has sustained or in is in immediate,
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators
to question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25,
Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed
by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and
duties for the equipment, materials supplies and other properties imported into or
acquired in the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners 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
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 taxpayers 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 Taada, 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 Courts duty, under the 1987 Constitution, to determine whether or not the
other branches of the government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them,
the Court has brushed aside technicalities of procedure and has taken cognizance of
this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled
that in cases of transcendental importance, the Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to
the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on
the doctrine of separation of powers, which enjoins upon the departments of the
government a becoming respect for each others acts,[25] this Court nevertheless resolves
to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
 One focal point of inquiry in this controversy is the determination of which provision
of the Constitution applies, with regard to the exercise by the senate of its constitutional
power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is
applicable considering that the VFA has for its subject the presence of foreign military
troops in the Philippines.Respondents, on the contrary, maintain that Section 21, Article
VII should apply inasmuch as the VFA is not a basing arrangement but an agreement
which involves merely the temporary visits of United States personnel engaged in joint
military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence
of the Senate on treaties or international agreements. Section 21, Article VII, which
herein respondents invoke, reads:
No treaty or international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
Section 21, Article VII deals with treatise or international agreements in general, in
which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate
is required to make the subject treaty, or international agreement, valid and binding on
the part of the Philippines. This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty with a wide variety of subject
matter, such as, but not limited to, extradition or tax treatise or those economic in
nature. All treaties or international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular designation or appellation, requires
the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties
which involve the presence of foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and to consider the
agreement binding on the Philippines.Section 25, Article XVIII further requires that
foreign military bases, troops, or facilities may be allowed in the Philippines only by virtue
of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required by Congress, and recognized
as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting
each other, actually share some common ground. These constitutional provisions both
embody phrases in the negative and thus, are deemed prohibitory in mandate and
character. In particular, Section 21 opens with the clause No treaty x x x, and Section
25 contains the phrase shall not be allowed. Additionally, in both instances, the
concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section
21, Article VII, and that the Senate extended its concurrence under the same provision,
is immaterial. For in either case, whether under Section 21, Article VII or Section 25,
Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is
mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines. It provides for the guidelines to govern
such visits of military personnel, and further defines the rights of the United States and
the Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving
foreign military bases, troops, or facilities, should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of section 21, Article VII will find
applicability with regard to the issue and for the sole purpose of determining the number
of votes required to obtain the valid concurrence of the Senate, as will be further
discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or
law prevails over a general one. Lex specialis derogat generali. Thus, where there is
in the same statute a particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only
such cases within its general language which are not within the provision of the particular
enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general
legislation must give way to a special legislation on the same subject, and generally be
so interpreted as to embrace only cases in which the special provisions are not
applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute
prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where
two statutes are of equal theoretical application to a particular case, the one designed
therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for
the establishment of a military base. On this score, the Constitution makes no distinction
between transient and permanent. Certainly, we find nothing in Section 25, Article XVIII
that requires foreign troops or facilities to be stationed or placed permanently in the
Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the
Court should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is
not controlling since no foreign military bases, but merely foreign troops and facilities,
are involved in the VFA. Notably, a perusal of said constitutional provision reveals that
the proscription covers foreign military bases, troops, or facilities. Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases
being established. The clause does not refer to foreign military bases,
troops, or facilities collectively but treats them as separate and independent
subjects. The use of comma and the disjunctive word or clearly signifies disassociation
and independence of one thing from the others included in the enumeration,[28]such that,
the provision contemplates three different situations - a military treaty the subject of
which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any
of the three standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this
interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the
three-bases, troops or facilities-or could the treaty entered into cover only one or
two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
some. We just want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer
viable because of the alternatives offered by new means and weapons of warfare such
as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in
the sea even for months and years without returning to their home country. These
military warships are actually used as substitutes for a land-home base not only of
military aircraft but also of military personnel and facilities. Besides, vessels are mobile
as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements
of Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met, viz: (a) it must be under
a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required
by congress, ratified by a majority of the votes cast by the people in a national
referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the
VFA. The concurrence handed by the Senate through Resolution No. 18 is in
accordance with the provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25,
Article XVIII, the provision in the latter article requiring ratification by a majority of the
votes cast in a national referendum being unnecessary since Congress has not required
it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty
or international agreement, to be valid and effective, must be concurred in by at least
two-thirds of all the members of the Senate. On the other hand, Section 25, Article
XVIII simply provides that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members
of the Senate is clearly required so that the concurrence contemplated by law may be
validly obtained and deemed present. While it is true that Section 25, Article XVIII require the other contracting state, the United States of America in this case, to
requires, among other things, that the treaty-the VFA, in the instant case-be duly submit the VFA to the United States Senate for concurrence pursuant to its
concurred in by the Senate, it is very true however that said provision must be related Constitution,[33] is to accord strict meaning to the phrase.
and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
Well-entrenched is the principle that the words used in the Constitution are to be
more specific terms, requires that the concurrence of a treaty, or international
given their ordinary meaning except where technical terms are employed, in which case
agreement, be made by a two -thirds vote of all the members of the Senate. Indeed,
the significance thus attached to them prevails. Its language should be understood in
Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII.
the sense they have in common use.[34]
As noted, the concurrence requirement under Section 25, Article XVIII must be
Moreover, it is inconsequential whether the United States treats the VFA only as an
construed in relation to the provisions of Section 21, Article VII. In a more particular
executive agreement because, under international law, an executive agreement is as
language, the concurrence of the Senate contemplated under Section 25, Article XVIII
binding as a treaty.[35] To be sure, as long as the VFA possesses the elements of an
means that at least two-thirds of all the members of the Senate favorably vote to concur
agreement under international law, the said agreement is to be taken equally as a treaty.
with the treaty-the VFA in the instant case.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
Under these circumstances, the charter provides that the Senate shall be composed
international instrument concluded between States in written form and governed by
of twenty-four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or
international law, whether embodied in a single instrument or in two or more related
not less than sixteen (16) members, favorably acting on the proposal is an
instruments, and whatever its particular designation.[36] There are many other terms used
unquestionable compliance with the requisite number of votes mentioned in Section 21
for a treaty or international agreement, some of which are: act, protocol,
of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at
agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes,
the time the voting was made,[31] will not alter in any significant way the circumstance
pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have
that more than two-thirds of the members of the Senate concurred with the proposed
pointed out that the names or titles of international agreements included under the
VFA, even if the two-thirds vote requirement is based on this figure of actual members
general term treaty have little or no legal significance. Certain terms are useful, but they
(23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at
furnish little more than mere description.[37]
least 16 favorable votes, suffice so as to render compliance with the strict constitutional
mandate of giving concurrence to the subject treaty. 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
Having resolved that the first two requisites prescribed in Section 25, Article XVIII
those terms, or to the meanings which may be given to them in the internal law of the
are present, we shall now pass upon and delve on the requirement that the VFA should
State.
be recognized as a treaty by the United States of America.
Thus, in international law, there is no difference between treaties and executive
Petitioners content that the phrase recognized as a treaty, embodied in section 25,
agreements in their binding effect upon states concerned, as long as the negotiating
Article XVIII, means that the VFA should have the advice and consent of the United
functionaries have remained within their powers.[38] International law continues to make
States Senate pursuant to its own constitutional process, and that it should not be
no distinction between treaties and executive agreements: they are equally binding
considered merely an executive agreement by the United States.
obligations upon nations.[39]
In opposition, respondents argue that the letter of United States Ambassador
In our jurisdiction, we have recognized the binding effect of executive agreements
Hubbard stating that the VFA is binding on the United States Government is conclusive,
even without the concurrence of the Senate or Congress. In Commissioner of
on the point that the VFA is recognized as a treaty by the United States of
Customs vs. Eastern Sea Trading,[40] we had occasion to pronounce:
America. According to respondents, the VFA, to be binding, must only be accepted as a
treaty by the United States.
x x x the right of the Executive to enter into binding agreements without the necessity
This Court is of the firm view that the phrase recognized as a treaty means that the of subsequent congressional approval has been confirmed by long usage. From the
other contracting party accepts or acknowledges the agreement as a treaty.[32] To 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.
xxxxxxxxx
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
nations 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 nations 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 Courts 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 Tribunals
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 powerIt 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 nations 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.
RTHUR D. LIM and PAULINO R. ERSANDO, petitioners, vs. HONORABLE
EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY
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 MACAPAGAL-ARROYO, ALBERTO ROMULO,
ANGELO REYES, respondents.
DECISION
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 (VFA) 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-list
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 7, 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 APP 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 APP 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 VFA. 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:
I
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL
DEFENSE TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY
ASSISTANCE IN ACCORDANCE WITH THE CONSTITUTIONAL PROCESSES
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 IMAGINATION 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 Ersandos 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 VFA. The Solicitor General asks that we accord due deference to the
executive determination that Balikatan 02-1 is covered by the VFA, considering the Presidents
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 Courts 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 departments of the
government a becoming respect for each others acts, this Court nevertheless resolves
to take cognizance of the instant petitions. [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 MDTs
objectives. It is this treaty to which the VFA 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 VFA 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 VFA 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 in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object and
purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(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 or 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 Commissions 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 travaux prparatoires 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
prparatoires 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 nations 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-relatedactivities 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, 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 VFA 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--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 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
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 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 (1) All cases in which
the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question. In other words, our Constitution authorizes the nullification
of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs
counter to an act of Congress.
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.

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, 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
SUZETTE NICOLAS y SOMBILON, G.R. No. 175888 n
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R The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian
O Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L. Soriano,
N Jr. of the crime of Rape under Article 266-A of the Revised Penal Code,
A as amended by Republic Act 8353, upon a complaint under oath filed by
L Suzette S. Nicolas, which is attached hereto and made an integral part
D hereof as Annex A, committed as follows:
O
That on or about the First (1st) day of November 2005, inside the
P Subic Bay Freeport Zone, Olongapo City and within the jurisdiction of
U this Honorable Court, the above-named accuseds (sic), being then
N members of the United States Marine Corps, except Timoteo L. Soriano,
O 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
Respondents. Promulgated: victim, did then and there willfully, unlawfully and feloniously sexually
February 11, 2009 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
X ---------------------------------------------------------------------------------------- X 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.

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:
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 P50,000.00 as compensatory damages plus P50,000.00 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--vis Bayan, and stare decisis vis--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 CaseZablocki 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 VI. This Treaty does not affect and shall not be interpreted as
ARTICLE I. The parties undertake, as set forth in the Charter of the affecting in any way the rights and obligations of the Parties under the
United Nations, to settle any international disputes in which they may be Charter of the United Nations or the responsibility of the United Nations
involved by peaceful means in such a manner that international peace for the maintenance of international peace and security.
and security and justice are not endangered and to refrain in their
international relation from the threat or use of force in any manner ARTICLE VII. This Treaty shall be ratified by the Republic of
inconsistent with the purposes of the United Nations. the Philippines and the United Nations of America in accordance with
their respective constitutional processes and will come into force when
ARTICLE II. In order more effectively to achieve the objective of this instruments of ratification thereof have been exchanged by them
Treaty, the Parties separately and jointly by self-help and mutual aid at Manila.
will maintain and develop their individual and collective capacity to
resist armed attack. ARTICLE VIII. This Treaty shall remain in force indefinitely. Either
Party may terminate it one year after notice has been given to the other
ARTICLE III. The Parties, through their Foreign Ministers or their party.
deputies, will consult together from time to time regarding the
implementation of this Treaty and whenever in the opinion of either of IN WITHNESS WHEREOF the undersigned Plenipotentiaries have
them the territorial integrity, political independence or security of either signed this Treaty.
of the Parties is threatened by external armed attack in the Pacific.
DONE in duplicate at Washington this thirtieth day of August, 1951.
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 For the Republic of the Philippines:
safety and declares that it would act to meet the common dangers in (Sgd.) CARLOS P. ROMULO
accordance with its constitutional processes. (Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
Any such armed attack and all measures taken as a result thereof shall be (Sgd.) DIOSDADO MACAPAGAL
immediately reported to the Security Council of the United Nations. Such
measures shall be terminated when the Security Council has taken the For the United States of America:
measures necessary to restore and maintain international peace and
security. (Sgd.) DEAN ACHESON
(Sgd.) JOHN FOSTER DULLES
ARTICLE V. For the purpose of Article IV, an armed attack on either of (Sgd.) TOM CONNALLY
the Parties is deemed to include an armed attack on the metropolitan (Sgd.) ALEXANDER WILEY[8]
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.
 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 CaseZablocki 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
ones 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
States 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 Statesauthorities. 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.
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.
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,
82ndCongress, 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--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. ExecutiveCongressional 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.
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 The initial factor for determining the existence of custom is the actual behavior of states. This
generally accepted principles of international law as part of the law of the land and includes several elements: duration, consistency, and generality of the practice of states.
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all
nations. (Emphasis supplied) The required duration can be either short or long. x x x

embodies the incorporation method.14 xxxx

In Mijares v. Ranada,15 the Court held thus: Duration therefore is not the most important element. More important is the consistency and
the generality of the practice. x x x
[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 xxxx
obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements: the established, Once the existence of state practice has been established, it becomes necessary to
widespread, and consistent practice on the part of States; and a psychological element determine why states behave the way they do. Do states behave the way they do
known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the because they consider it obligatory to behave thus or do they do it only as a matter of
latter element is a belief that the practice in question is rendered obligatory by the existence courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is
of a rule of law requiring it.16 (Emphasis supplied) what makes practice an international rule. Without it, practice is not law.22(Underscoring
and 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 Clearly, customary international law is deemed incorporated into our domestic system.23
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
WHA Resolutions have not been embodied in any local legislation. Have they attained the status of
of law" has also been depicted in this wise:
customary law and should they then be deemed incorporated as part of the law of the land?
Some legal scholars and judges look upon certain "general principles of law" as a primary source of
The World Health Organization (WHO) is one of the international specialized agencies allied with the
international law because they have the "character of jus rationale" and are "valid through all
United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the
kinds of human societies."(Judge Tanaka in his dissenting opinion in the 1966 South West Africa
1946 WHO Constitution, it is the WHA which determines the policies of the WHO, 26 and has the
Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law
power to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and
because they are "basic to legal systems generally" and hence part of the jus gentium. These
similar products moving in international commerce," 27and to "make recommendations to members
principles, he believes, are established by a process of reasoning based on the common identity of
with respect to any matter within the competence of the Organization." 28 The legal effect of its
all legal systems. If there should be doubt or disagreement, one must look to state practice and
regulations, as opposed to recommendations, is quite different.
determine whether the municipal law principle provides a just and acceptable solution. x x
x 21 (Emphasis supplied)
Regulations, along with conventions and agreements, duly adopted by the WHA bind member
states thus:
Fr. Joaquin G. Bernas defines customary international law as follows:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements
Custom or customary international law means "a general and consistent practice of states
with respect to any matter within the competence of the Organization. A two-thirds vote of
followed by them from a sense of legal obligation [opinio juris]." (Restatement) This
the Health Assembly shall be required for the adoption of such conventions or agreements,
statement contains the two basic elements of custom: the material factor, that is, how
which shall come into force for each Member when accepted by it in accordance with
states behave, and the psychological or subjective factor, that is, why they behave the
its constitutional processes.
way they do.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption
xxxx
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 R
adequate nutrition for infants is provided, there and Regulations are hereby promulgate
is a need to protect and promote breastfeeding ensure the provision of safe and adeq
 and to inform the public about the proper use of nutrition for infants and young children by the authorized and approved by an inter-agency f. Advertising, promotions, or sponsor-shi
breastmilk substitutes and supplements and promotion, protection and support of committee created herein pursuant to the infant formula, breastmilk substitutes and
related products through adequate, consistent breastfeeding and by ensuring the proper use of applicable standards provided for in this Code. related products are prohibited.
and objective information and appropriate breastmilk substitutes, breastmilk supplements
regulation of the marketing and distribution of and related products when these are medically Section 11. Prohibition – No advert
the said substitutes, supplements and related indicated and only when necessary, on the promotions, sponsorships, or mark
products; basis of adequate information and through materials and activities for breas
appropriate marketing and distribution. substitutes intended for infants and y
SECTION 4(e). "Infant" means a person falling children up to twenty-four (24) months, sha
within the age bracket of 0-12 months. Section 5(ff). "Young Child" means a person allowed, because they tend to convey or
from the age of more than twelve (12) months subliminal messages or impressions
up to the age of three (3) years (36 months). undermine breastmilk and breastfeedin
otherwise exaggerate breastmilk substi
2. The Milk Code recognizes that infant formula may be a proper and possible substitute for and/or replacements, as well as re
breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for infants products covered within the scope of this C
from 0-6 months" and declares that "there is no substitute nor replacement for breastmilk":
Section 13. "Total Effect" - Promotio
MILK CODE RIRR products within the scope of this Code mu
objective and should not equate or make
WHEREAS, in order to ensure that safe and Section 4. Declaration of Principles – The product appear to be as good or equ
adequate nutrition for infants is provided, there following are the underlying principles from breastmilk or breastfeeding in the adver
is a need to protect and promote breastfeeding which the revised rules and regulations are concept. It must not in any case under
and to inform the public about the proper use of premised upon: breastmilk or breastfeeding. The "total e
breastmilk substitutes and supplements and should not directly or indirectly suggest
related products through adequate, consistent a. Exclusive breastfeeding is for infants from 0 buying their product would produce b
and objective information and appropriate to six (6) months. individuals, or resulting in greater
regulation of the marketing and distribution of intelligence, ability, harmony or in any ma
the said substitutes, supplements and related b. There is no substitute or replacement for bring better health to the baby or other
products; breastmilk. exaggerated and unsubstantiated claim.

3. The Milk Code only regulates and does not impose unreasonable requirements for Section 15. Content of Materials. -
advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk following shall not be included in advert
substitutes intended for infants from 0-24 months old or beyond, and forbids the use of health promotional and marketing materials:
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: a. Texts, pictures, illustrations or inform
which discourage or tend to undermine
MILK CODE RIRR benefits or superiority of breastfeeding or w
SECTION 6. The General Public and Section 4. Declaration of Principles – The idealize the use of breastmilk substitutes
Mothers. – following are the underlying principles from milk supplements. In this connection
which the revised rules and regulations are pictures of babies and children together
their mothers, fathers, siblings, grandpar
(a) No advertising, promotion or other marketing premised upon:
other relatives or caregivers (or yayas) sha
materials, whether written, audio or visual,
used in any advertisements for infant for
for products within the scope of this Code shall x x x x
and breastmilk supplements;
be printed, published, distributed, exhibited and
broadcast unless such materials are duly
 b. The term "humanized," "maternalized," "close (iv) instructions for appropriate preparation, and infant formula may contain pathog
to mother's milk" or similar words in describing a warning against the health hazards of microorganisms and must be prepared
breastmilk substitutes or milk supplements; inappropriate preparation. used appropriately.

c. Pictures or texts that idealize the use of infant 5. The Milk Code allows dissemination of information on infant formula to health
and milk formula. professionals; the RIRR totally prohibits such activity:

Section 16. All health and nutrition claims for MILK CODE RIRR
products within the scope of the Code are SECTION 7. Health Care System. – Section 22. No manufacturer, distributo
absolutely prohibited. For this purpose, any representatives of products covered by
phrase or words that connotes to increase
emotional, intellectual abilities of the infant and (b) No facility of the health care system shall be Code shall be allowed to conduct or be invo
young child and other like phrases shall not be used for the purpose of promoting infant formula in any activity on breastfeeding promo
allowed. or other products within the scope of this education and production of Informa
Code. This Code does not, however, preclude Education and Communication (IEC) mate
the dissemination of information to health on breastfeeding, holding of or participatin
4. The RIRR imposes additional labeling requirements not found in the Milk Code: professionals as provided in Section 8(b). speakers in classes or seminars for women
children activities and to avoid the use of t
MILK CODE RIRR SECTION 8. Health Workers. - venues to market their brands or com
SECTION 10. Containers/Label. – Section 26. Content – Each container/label names.
shall contain such message, in both Filipino and (b) Information provided by manufacturers and
(a) Containers and/or labels shall be designed English languages, and which message cannot distributors to health professionals regarding SECTION 16. All health and nutrition claim
to provide the necessary information about the be readily separated therefrom, relative the products within the scope of this Code shall be products within the scope of the Code
appropriate use of the products, and in such a following points: restricted to scientific and factual matters and absolutely prohibited. For this purpose,
way as not to discourage breastfeeding. such information shall not imply or create a phrase or words that connotes to incr
(a) The words or phrase "Important Notice" or belief that bottle-feeding is equivalent or emotional, intellectual abilities of the infan
(b) Each container shall have a clear, "Government Warning" or their equivalent; superior to breastfeeding. It shall also include young child and other like phrases shall n
the information specified in Section 5(b). allowed.
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; 6. The Milk Code permits milk manufacturers and distributors to extend assistance in
not readily become separated from it, and which research and continuing education of health professionals; RIRR absolutely forbids the same.
shall include the following points: (c) A statement that there is no substitute for
breastmilk; MILK CODE RIRR
(i) the words "Important Notice" or their SECTION 8. Health Workers – Section 4. Declaration of Principles –
equivalent; (d) A statement that the product shall be used
only on the advice of a health worker as to the (e) Manufacturers and distributors of products The following are the underlying principles
(ii) a statement of the superiority of need for its use and the proper methods of use; within the scope of this Code may assist in the which the revised rules and regulations
breastfeeding; research, scholarships and continuing premised upon:
(e) Instructions for appropriate prepara-tion, education, of health professionals, in
(iii) a statement that the product shall be used and a warning against the health hazards of accordance with the rules and regulations i. Milk companies, and
only on the advice of a health worker as to the inappropriate preparation; and promulgated by the Ministry of Health. representatives, should not form part of
need for its use and the proper methods of use; policymaking body or entity in relation to
and (f) The health hazards of unnecessary or advancement of breasfeeding.
improper use of infant formula and other related
products including information that powdered
 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 activitiesand 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 of Section 52. Other Donations By Milk
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. –
following administrative sanctions shal
imposed upon any person, juridical or na
found to have violated the provisions o
Code and its implementing Rules
Regulations:
a) 1st violation – Warning;
b) 2nd violation – Administrative fine
minimum of Ten Thousand (P10,000.00) to
Thousand (P50,000.00) Pesos, dependin
the gravity and extent of the violation, inclu
the recall of the offending product;
c) 3rd violation – Administrative Fine
minimum of Sixty Thousand (P60,000.0
One Hundred Fifty Thousand (P150,00
Pesos, depending on the gravity and exte
the violation, and in addition thereto, the r
of the offending product, and suspension o
Certificate of Product Registration (CPR);
d) 4th violation –Administrative Fine o
minimum of Two Hundred Thou
(P200,000.00) to Five Hundred (P500,00
Thousand Pesos, depending on the gravity
extent of the violation; and in addition the
the recall of the product, revocation of the C
suspension of the License to Operate (LTO
one year;
e) 5th and succeeding repeated violatio
Administrative Fine of One M
(P1,000,000.00) Pesos, the recall of
offending product, cancellation of the C
revocation of the License to Operate (LTO
the company concerned, including
blacklisting of the company to be furnishe
Department of Budget and Management (D
and the Department of Trade and Ind
(DTI);
 notFive
f) An additional penalty of Two Thou-sand suitable for that purpose." This section conspicuously lacks reference to any particular age-
Hundred (P2,500.00) Pesos per day shall group be of children. Hence, the provision of the Milk Code cannot be considered exclusive for
children
made for every day the violation continues after aged 0-12 months. In other words, breastmilk substitutes may also be intended for young
children
having received the order from the IAC or other 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.
such appropriate body, notifying and penalizing
the company for the infraction.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in
For purposes of determining whether Section
or not 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 "repeated" violation, each product
violation belonging or owned by a company,
including those of their subsidiaries, Thereareis, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.
deemed to be violations of the concerned milk
company and shall not be based on the specific
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize that
violating product alone. breastmilk substitutes may be a proper and possible substitute for breastmilk.

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.
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.

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
3. The Court shall ascertain the merits of allegations 3 45 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-visbreastmilk 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 Code54 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 1657of 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 notimply 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 (a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the
following members is hereby created:
xxxx
Minister of Health ------------------- Chairman
(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 Minister of Trade and Industry ------------------- Member
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 Minister of Justice ------------------- Member
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; Minister of Social Services and Development ------------------- Member
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
The members may designate their duly authorized representative to every meeting of the
may idealize the use of breastmilk substitutes. (Emphasis supplied)
Committee.
The label of a product contains information about said product intended for the buyers thereof. The
The Committee shall have the following powers and functions:
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. (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;
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 (2) To approve or disapprove, delete objectionable portions from and prohibit the
that eliminates all forms of contamination.62 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;
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. (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
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 (4) To promulgate such rules and regulations as are necessary or proper for
advertising, promotion, and marketing that is being assailed by petitioner. the implementation of Section 6(a) of this Code. x x x (Emphasis supplied)

In furtherance of Section 6(a) of the Milk Code, to wit: However, Section 11 of the RIRR, to wit:

SECTION 6. The General Public and Mothers. – 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
(a) No advertising, promotion or other marketing materials, whether written, audio or visual,
or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate
for products within the scope of this Code shall be printed, published, distributed, exhibited
breastmilk substitutes and/or replacements, as well as related products covered within the
and broadcast unless such materials are duly authorized and approved by an inter-agency
scope of this Code.
committee created herein pursuant to the applicable standards provided for in this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk
the Milk Code invested regulatory authority over advertising, promotional and marketing materials to
substitutes in line with the RIRR’s declaration of principle under Section 4(f), to wit:
an IAC, thus:
SECTION 4. Declaration of Principles –
SECTION 12. Implementation and Monitoring -
 xxxx 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.
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?

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 SOLICITOR GENERAL DEVANADERA:
thereof for prior approval by IAC of all advertising, marketing and promotional materials prior to
dissemination. Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.

Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, xxxx
during the oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually
operational, viz: ASSOCIATE JUSTICE SANTIAGO:

SOLICITOR GENERAL DEVANADERA: 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
xxxx rule as well as the content of materials under Section 13 and 15 of the rules and regulations?

x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there SOLICITOR GENERAL DEVANADERA:
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 Your Honor, please, first we would like to stress that there is no total absolute ban. Second,
states and it is entitled prohibition it states that no advertising, promotion, sponsorship or the Inter-Agency Committee is under the Department of Health, Your Honor.
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
xxxx
or give subliminal messages or impression undermine that breastmilk or breastfeeding x x x.
ASSOCIATE JUSTICE NAZARIO:
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. 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?
xxxx
SOLICITOR GENERAL DEVANADERA:
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. Yes, your Honor.

xxxx ASSOCIATE JUSTICE NAZARIO:

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.
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)74of 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 5175 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.
 GEN. AVELINO I. RAZON, G.R. No. 182498 wife, Mary Jean B. Tagitis (respondent). The dispositive portion of the CA decision
JR., Chief, Philippine reads:
National Police (PNP); Police Present:
Chief Superintendent RAUL WHEREFORE, premises considered, petition is
CASTAEDA, Chief, Criminal PUNO, C.J., hereby GRANTED. The Court hereby FINDS that this is an enforced
Investigation and Detection CARPIO, disappearance within the meaning of the United Nations instruments, as
Group (CIDG); Police Senior CORONA, used in the Amparo Rules. The privileges of the writ of amparo are
Superintendent LEONARDO CARPIO MORALES, hereby extended to Engr. Morced Tagitis.
A. ESPINA, Chief, Police CHICO-NAZARIO,
Anti-Crime and Emergency VELASCO, JR., Consequently: (1) respondent GEN. EDGARDO M.
Response (PACER); and NACHURA, DOROMAL, Chief, Criminal Investigation and Detention Group
GEN. JOEL R. GOLTIAO, LEONARDO-DE CASTRO, (CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9
Regional Director of ARMM, BRION, Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
PNP, PERALTA, RAZON, Chief, PNP, who should order his men, namely: (a)
Petitioners, BERSAMIN, respondent GEN. JOEL GOLTIAO, Regional Director of ARMM
- versus - DEL CASTILLO, PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE
ABAD, and TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO
VILLARAMA, JR., JJ. A. ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid
MARY JEAN B. TAGITIS, him as their superior- are hereby DIRECTED to exert extraordinary
herein represented by ATTY. diligence and efforts, not only to protect the life, liberty and security of
FELIPE P. ARCILLA, JR., Engr. Morced Tagitis, but also to extend the privileges of the writ
Promulgated: of amparo to Engr. Morced Tagitis and his family, and to submit a
Attorney-in-Fact,
monthly report of their actions to this Court, as a way of PERIODIC
Respondent.
REVIEW to enable this Court to monitor the action of respondents.
December 3, 2009
This amparo case is hereby DISMISSED as to respondent LT.
GEN. ALEXANDER YANO, Commanding General, Philippine Army,
x-----------------------------------------------------------------------------------------x and as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task
DECISION Force Comet, Zamboanga City, both being with the military, which is a
BRION, J.: separate and distinct organization from the police and the CIDG, in terms
of operations, chain of command and budget.
We review in this petition for review on certiorari[1] the decision dated
March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. This Decision reflects the nature of the Writ of Amparo a protective remedy against
00009.[2] This CA decision confirmed the enforced disappearance of Engineer violations or threats of violation against the rights to life, liberty and security. [3] It
embodies, as a remedy, the courts directive to police agencies to undertake
Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his
specified courses of action to address the disappearance of an individual, in this
case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines responsibility, or at
least accountability, for the enforced disappearance for purposes of imposing the
appropriate remedies to address the disappearance. Responsibility refers to the
extent the actors have been established by substantial evidence to have participated
in whatever way, by action or omission, in an enforced disappearance, as a measure
of the remedies this Court shall craft, among them, the directive to file the
appropriate criminal and civil cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure of remedies that
should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who carry,
but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the
Writ of Amparo is justified by our primary goal of addressing the disappearance,
so that the life of the victim is preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the
unique situations that call for the issuance of the writ, as well as the considerations
and measures necessary to address these situations, may not at all be the same as
the standard measures and procedures in ordinary court actions and proceedings. In
this sense, the Rule on the Writ of Amparo[4] (Amparo Rule) issued by this Court is
unique. The Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship
Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They immediately checked-
in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his
return trip the following day to Zamboanga.When Kunnong returned from this
errand, Tagitis was no longer around.[5] The receptionist related that Tagitis went
out to buy food at around 12:30 in the afternoon and even left his room key with
the desk.[6] Kunnong looked for Tagitis and even sent a text message to the latters
Manila-based secretary who did not know of Tagitis whereabouts and activities
either; she advised Kunnong to simply wait.[7]
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP
professor of Muslim studies and Tagitis fellow student counselor at the IDB,
reported Tagitis disappearance to the Jolo Police Station.[8] On November 7, 2007,
Kunnong executed a sworn affidavit attesting to what he knew of the circumstances
surrounding Tagitis disappearance.[9]
More than a month later (on December 28, 2007), the respondent filed a Petition
for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty.
Felipe P. Arcilla.[10] The petition was directed against Lt. Gen. Alexander Yano,
Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine
National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation
and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-
Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-
PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively
referred to as petitioners]. After reciting Tagitis personal circumstances and the
facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take
his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a
motor vehicle then sped away without the knowledge of his student, Arsimin
Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension
house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be
contacted by phone and was not also around and his room was closed and locked;
9. Kunnong requested for the key from the desk of the pension house who [sic] assisted
him to open the room of Engr. Tagitis, where they discovered that the personal
belongings of Engr. Tagitis, including cell phones, documents and other personal
belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter
to the police authorities in Jolo, he was immediately given a ready answer that
Engr. Tagitis could have been abducted by the Abu Sayyaf group and other groups
known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone
and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines, who alerted the office of the Governor of ARMM
who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees with the Land
Bank in Digos branch, Digos City, Davao del Sur who likewise sought help from
some of their friends in the military who could help them find/locate the
whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any positive results except the
information from persons in the military who do not want to be identified that
Engr. Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr. Tagitis
is in the custody of police intelligence operatives, specifically with the CIDG,
PNP Zamboanga City,being held against his will in an earnest attempt of the
police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [respondents] request and pleadings failed to produce any positive
results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the
police that her husband, subject of the petition, was not missing but was with
another woman having good time somewhere, which is a clear indication of the
[petitioners] refusal to help and provide police assistance in locating her missing
husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over
subject Engr. Tagitis to his family or even to provide truthful information to [the
respondent] of the subjects whereabouts, and/or allow [the respondent] to visit her
husband Engr. Morced Tagitis, caused so much sleepless nights and serious
anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to
these places thereby resorting her to borrowings and beggings [sic] for financial
help from friends and relatives only to try complying [sic] to the different
suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons
that she should approach, but assured her not to worry because her husband is
[sic] in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the [respondents]
request for help and failure and refusal of the [petitioners] to extend the needed
help, support and assistance in locating the whereabouts of Engr. Tagitis who had
been declared missing since October 30, 2007 which is almost two (2) months
now, clearly indicates that the [petitioners] are actually in physical possession and
custody of [respondents] husband, Engr. Tagitis;
xxxx

25. [The respondent] has exhausted all administrative avenues and remedies but to no
avail, and under the circumstances, [the respondent] has no other plain, speedy
and adequate remedy to protect and get the release of subject Engr. Morced Tagitis
from the illegal clutches of the [petitioners], their intelligence operatives and the
like which are in total violation of the subjects human and constitutional rights,
except the issuance of a WRIT OF AMPARO. [Emphasis supplied]
On the same day the petition was filed, the CA immediately issued the Writ
of Amparo, set the case for hearing on January 7, 2008, and directed the petitioners
to file their verified return within seventy-two (72) hours from service of the writ.[11]
In their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis alleged
abduction. They argued that the allegations of the petition were incomplete and did
not constitute a cause of action against them; were baseless, or at best speculative;
and were merely based on hearsay evidence. [12]
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return,
stated that: he did not have any personal knowledge of, or any participation in, the
alleged disappearance; that he had been designated by President Gloria Macapagal
Arroyo as the head of a special body called TASK FORCE USIG, to address
concerns about extralegal killings and enforced disappearances; the Task
Force, inter alia, coordinated with the investigators and local police, held case
conferences, rendered legal advice in connection to these cases; and gave the
following summary:[13]
xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional
Office ARMM submitted a report on the alleged disappearance of one Engr.
Morced Tagitis. According to the said report, the victim checked-in at ASY
Pension House on October 30, 2007 at about 6:00 in the morning and then roamed
around Jolo, Sulu with an unidentified companion. It was only after a few days
when the said victim did not return that the matter was reported to Jolo
MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to
trace and locate the whereabouts of the said missing person, but to no avail. The
said PPO is still conducting investigation that will lead to the immediate findings
of the whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress
Report to the Director, CIDG. The said report stated among others that: subject
person attended an Education Development Seminar set on October 28, 2007
conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof.
Matli. On October 30, 2007, at around 5:00 oclock in the morning, Engr. Tagitis
reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then
billeted at ASY Pension House. At about 6:15 oclock in the morning of the same
date, he instructed his student to purchase a fast craft ticket bound for Zamboanga
City and will depart from Jolo, Sulu on October 31, 2007. That on or about 10:00
oclock in the morning, Engr. Tagitis left the premises of ASY Pension House as
stated by the cashier of the said pension house. Later in the afternoon, the student
instructed to purchase the ticket arrived at the pension house and waited for Engr.
Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now
conducting a continuous case build up and information gathering to locate the
whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all
divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or
illegally detained by covert CIDG-PNP Intelligence Operatives since October 30,
2007, but after diligent and thorough search, records show that no such person is
being detained in CIDG or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted all possible
efforts, steps and actions available under the circumstances and continuously
search and investigate [sic] the instant case. This immense mandate, however,
necessitates the indispensable role of the citizenry, as the PNP cannot stand alone
without the cooperation of the victims and witnesses to identify the perpetrators
to bring them before the bar of justice and secure their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the
Writ of Amparo, he caused the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable
Special Fourth Division of the Court of Appeals, I immediately directed the
 Investigation Division of this Group [CIDG] to conduct urgent investigation on
the alleged enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education
Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at
around six oclock in the morning he arrived at Jolo, Sulu. He was assisted by his
student identified as Arsimin Kunnong of the Islamic Development Bank who was
also one of the participants of the said seminar. He checked in at ASY pension
house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic]
unidentified companion. At around six oclock in the morning of even date, Engr.
Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In
the afternoon of the same date, Kunnong arrived at the pension house carrying the
ticket he purchased for Engr. Tagitis, but the latter was nowhere to be found
anymore. Kunnong immediately informed Prof. Abdulnasser Matli who reported
the incident to the police. The CIDG is not involved in the disappearance of Engr.
Morced Tagitis to make out a case of an enforced disappearance which
presupposes a direct or indirect involvement of the government.
That herein [petitioner] searched all divisions and departments for a person named
Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by
covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a
diligent and thorough research records show that no such person is being detained
in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr.
Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or persons responsible
therefore.
Likewise attached to the Return of the Writ was PNP-PACER[15] Chief PS Supt.
Leonardo A. Espinas affidavit which alleged that:[16]
xxxx
That, I and our men and women in PACER vehemently deny any participation in
the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS
on October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that
the alleged abduction was perpetrated by elements of PACER nor was there any
indication that the alleged abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence
operatives alleged to have abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or
eradicating kidnap-for-ransom groups which until now continue to be one of the
menace of our society is a respondent in kidnapping or illegal detention
case. Simply put, our task is to go after kidnappers and charge them in court and
to abduct or illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed the
Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active
measures to investigate, locate/search the subject, identify and apprehend the
persons responsible, to recover and preserve evidence related to the disappearance
of ENGR. MORCED TAGITIS, which may aid in the prosecution of the person
or persons responsible, to identify witnesses and obtain statements from them
concerning the disappearance and to determine the cause, manner, location and
time of disappearance as well as any pattern or practice that may have brought
about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE
ARNALDO BRIONES JR., to submit a written report regarding the disappearance
of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax
his written report.
That the investigation and measures being undertaken to locate/search the subject
in coordination with Police Regional Office, Autonomous Region of Muslim
Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP
and PNP units/agencies in the area are ongoing with the instruction not to leave
any stone unturned so to speak in the investigation until the perpetrators in the
instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the
WRIT OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Tagitis, to identify witnesses and obtain statements from them concerning his
Goltiao), also submitted his affidavit detailing the actions that he had taken upon disappearance, to determine the cause and manner of his disappearance, to identify
and apprehend the person or persons involved in the disappearance so that they
receipt of the report on Tagitis disappearance, viz:[17]
shall be brought before a competent court;
xxxx
9. Thereafter, through my Chief of the Regional Investigation and Detection
3) For the record:
Management Division, I have caused the following directives:
1. I am the Regional Director of Police Regional Office ARMM now
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007
and during the time of the incident;
directing PD Sulu PPO to conduct joint investigation with CIDG and
CIDU ARMM on the matter;
xxxx
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007
4. It is my duty to look into and take appropriate measures on any cases of
directing PD Sulu PPO to expedite compliance to my previous directive;
reported enforced disappearances and when they are being alluded to my office;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office
reiterating our series of directives for investigation and directing him to
reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on
undertake exhaustive coordination efforts with the owner of ASY Pension
November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee
House and student scholars of IDB in order to secure corroborative
of Islamic Development Bank, appeared before the Office of the Chief of Police,
statements regarding the disappearance and whereabouts of said
Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis,
personality;
scholarship coordinator of Islamic Development Bank, Manila;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO
6. There was no report that Engr. Tagibis was last seen in the company of or taken
directing him to maximize efforts to establish clues on the whereabouts of
by any member of the Philippine National Police but rather he just disappeared
Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and
from ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu,
Arsimin Kunnong and/or whenever necessary, for them to voluntarily
on October 30, 2007, without any trace of forcible abduction or arrest;
submit for polygraph examination with the NBI so as to expunge all clouds
of doubt that they may somehow have knowledge or idea to his
7. The last known instance of communication with him was when Arsimin
disappearance;
Kunnong, a student scholar, was requested by him to purchase a vessel ticket at
the Office of Weezam Express, however, when the student returned back to ASY
e) Memorandum dated December 27, 2007 addressed to the Regional Chief,
Pension House, he no longer found Engr. Tagitis there and when he immediately
Criminal Investigation and Detection Group, Police Regional Office 9,
inquired at the information counter regarding his whereabouts [sic], the person in
Zamboanga City, requesting assistance to investigate the cause and
charge in the counter informed him that Engr. Tagitis had left the premises on
unknown disappearance of Engr. Tagitis considering that it is within their
October 30, 2007 around 1 oclock p.m. and never returned back to his room;
area of operational jurisdiction;
8. Immediately after learning the incident, I called and directed the Provincial
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated
Director of Sulu Police Provincial Office and other units through phone call and
December 30, 2007 addressed to PD Sulu PPO requiring them to submit
text messages to conduct investigation [sic] to determine the whereabouts of the
complete investigation report regarding the case of Engr. Tagitis;
aggrieved party and the person or persons responsible for the threat, act or
omission, to recover and preserve evidence related to the disappearance of Engr.
 10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to
conduct investigation [sic] on the matter to determine the whereabouts of Engr.
Tagitis and the circumstances related to his disappearance and submitted the
following:
a) Progress Report dated November 6, 2007 through Radio Message Cite No.
SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they
are still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo
Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as shown
in the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing
him of the facts of the disappearance and the action being taken by our office;
b) Memorandum dated November 6, 2007 addressed to the Director, Directorate
for Investigation and Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be
determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao
as the officer in command of the area of disappearance to form TASK FORCE
TAGITIS.[18]
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt.
Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently set three
hearings to monitor whether TASK FORCE TAGITIS was exerting extraordinary
efforts in handling the disappearance of Tagitis.[20] As planned, (1) the first hearing
would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be
to mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing
would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of
Zamboanga City and other police operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA
an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo
Police Station, stating a possible motive for Tagitis disappearance.[22] The
intelligence report was apparently based on the sworn affidavit dated January 4,
2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic
Studies at the University of the Philippines and an Honorary Student Counselor of
the IDB Scholarship Program in the Philippines, who told the Provincial Governor
of Sulu that:[23]
[Based] on reliable information from the Office of Muslim Affairs in Manila,
Tagitis has reportedly taken and carried away more or less Five Million Pesos
(P5,000,000.00) deposited and entrusted to his [personal] bank accounts by the
Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended
for the IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to
be responsible, he personally went to the CIDG office in Zamboanga City to
conduct an ocular inspection/investigation, particularly of their detention
cells.[24] PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis, persistently denied any
knowledge or complicity in any abduction.[25] He further testified that prior to the
hearing, he had already mobilized and given specific instructions to their supporting
units to perform their respective tasks; that they even talked to, but failed to get any
lead from the respondent in Jolo.[26] In his submitted investigation report dated
January 16, 2008, PS Supt. Ajirim concluded:[27]
9. Gleaned from the undersigned inspection and observation at the Headquarters 9
RCIDU and the documents at hand, it is my own initial conclusion that the
9RCIDU and other PNP units in the area had no participation neither [sic]
something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last
 October 30, 2007. Since doubt has been raised regarding the emolument on the
Islamic Development Bank Scholar program of IDB that was reportedly deposited
in the personal account of Engr. Tagitis by the IDB central office in Jeddah,
Kingdom of Saudi Arabia.Secondly, it could might [sic] be done by resentment or
sour grape among students who are applying for the scholar [sic] and were denied
which was allegedly conducted/screened by the subject being the coordinator of
said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that the motive
behind the disappearance of the subject might be due to the funds he maliciously
spent for his personal interest and wanted to elude responsibilities from the
institution where he belong as well as to the Islamic student scholars should the
statement of Prof. Matli be true or there might be a professional jealousy among
them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be
dropped and dismissed considering on [sic] the police and military actions in the
area particularly the CIDG are exerting their efforts and religiously doing their
tasked [sic] in the conduct of its intelligence monitoring and investigation for the
early resolution of this instant case. But rest assured, our office, in coordination
with other law-enforcement agencies in the area, are continuously and religiously
conducting our investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that TASK FORCE
TAGITIS did not appear to be exerting extraordinary efforts in resolving Tagitis
disappearance on the following grounds:[28]
(1) This Court FOUND that it was only as late as January 28, 2008,
after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had
requested for clear photographs when it should have been standard operating
procedure in kidnappings or disappearances that the first agenda was for the police
to secure clear pictures of the missing person, Engr. Morced Tagitis, for
dissemination to all parts of the country and to neighboring countries. It had been
three (3) months since GEN. JOEL GOLTIAO admitted having been informed on
November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged
bad elements of the CIDG. It had been more than one (1) month since the Writ of
Amparo had been issued on December 28, 2007. It had been three (3) weeks when
battle formation was ordered through Task Force Tagitis, on January 17, 2008. It
was only on January 28, 2008 when the Task Force Tagitis requested for clear and
recent photographs of the missing person, Engr. Morced Tagitis, despite the Task
Force Tagitis claim that they already had an all points bulletin, since November
5, 2007, on the missing person, Engr. Morced Tagitis. How could the police look
for someone who disappeared if no clear photograph had been disseminated?
(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM
informed this Court that P/Supt KASIM was designated as Col. Ahirom Ajirims
replacement in the latters official designated post. Yet, P/Supt KASIMs subpoena
was returned to this Court unserved. Since this Court was made to understand that
it was P/Supt KASIM who was the petitioners unofficial source of the military
intelligence information that Engr. Morced Tagitis was abducted by bad elements
of the CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM
and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the
appearance of Col. KASIM in response to this courts subpoena and COL. KASIM
could have confirmed the military intelligence information that bad elements of
the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her to
specify her allegations, particularly paragraph 15 of the petition.[29] This friend also
told her that her husband [was] in good hands.[30] The respondent also testified that
she sought the assistance of her former boss in Davao City, Land Bank Bajada
Branch Manager Rudy Salvador, who told her that PNP CIDG is holding [her
husband], Engineer Morced Tagitis.[31] The respondent recounted that she went to
Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col.
Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a
highly confidential report that contained the alleged activities of Engineer Tagitis
and informed her that her husband was abducted because he is under custodial
investigation for being a liaison for J.I. or Jemaah Islamiah.[32]
On January 17, 2008, the respondent on cross-examination testified that she is
Tagitis second wife, and they have been married for thirteen years; Tagitis was
divorced from his first wife.[33] She last communicated with her husband on October
29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way
to Jolo, Sulu, from Zamboanga City.[34]
The respondent narrated that she learned of her husbands disappearance on October
30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she
had not heard from her father since the time they arranged to meet in Manila on
October 31, 2007.[35] The respondent explained that it took her a few days (or on
November 5, 2007) to personally ask Kunnong to report her husbands
disappearance to the Jolo Police Station, since she had the impression that her
husband could not communicate with her because his cellular phones battery did
not have enough power, and that he would call her when he had fully-charged his
cellular phones battery.[36]
The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr
(Col. Ancanan). She met him in Camp Karingal, Zamboanga through her
boss.[37] She also testified that she was with three other people, namely, Mrs.
Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when
Col. Kasim read to them the contents of the highly confidential report at Camp
Katitipan, Davao City. The respondent further narrated that the report indicated that
her husband met with people belonging to a terrorist group and that he was under
custodial investigation. She then told Col. Kasim that her husband was a diabetic
taking maintenance medication, and asked that the Colonel relay to the persons
holding him the need to give him his medication.[38]
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative
reports,[39] signed by the respondent, detailing her efforts to locate her husband
which led to her meetings with Col. Ancanan of the Philippine Army and Col.
Kasim of the PNP. In her narrative report concerning her meeting with Col.
Ancanan, the respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel
Talbin. Our flight from Davao City is 9:00 oclock in the morning; we arrived at
Zamboanga Airport at around 10:00 oclock. We [were] fetched by the two staffs
of Col. Ancanan. We immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed
me and got information about the personal background of Engr. Morced N.
Tagitis. After he gathered all information, he revealed to us the contents of text
messages they got from the cellular phone of the subject Engr. Tagitis. One of the
very important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis
was that she was not allowed to answer any telephone calls in his condominium
unit.
While we were there he did not tell us any information of the whereabouts of Engr.
Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the
city. His two staffs accompanied us to the mall to purchase our plane ticket going
back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning,
Col. Ancanan and I were discussing some points through phone calls. He assured
me that my husband is alive and hes last looked [sic] in Talipapao, Jolo, Sulu. Yet
I did not believe his given statements of the whereabouts of my husband, because
I contacted some of my friends who have access to the groups of MILF, MNLF
and ASG. I called up Col. Ancanan several times begging to tell me the exact
location of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because
the PNP, Jolo did not give me any information of the whereabouts of my
husband. Col. Ancanan told me that Sana ngayon alam mo na kung saan ang
kinalalagyan ng asawa mo. When I was in Zamboanga, I was thinking of dropping
by the office of Col. Ancanan, but I was hesitant to pay him a visit for the reason
that the Chief of Police of Jolo told me not to contact any AFP officials and he
promised me that he can solve the case of my husband (Engr. Tagitis) within nine
days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband
Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch,
Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer
Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I
 asked him a favor to contact his connections in the military in Jolo, Sulu where
the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up
Camp Katitipan located in Davao City looking for high-ranking official who can
help me gather reliable information behind the abduction of subject Engineer
Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador
introduced me to Col. Kasim and we had a short conversation. And he assured me
that hell do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that
I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential
information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three
friends. That was the time that Col. Kasim read to us the confidential report that
Engr. Tagitis was allegedly connected [with] different terrorist [groups], one of
which he mentioned in the report was OMAR PATIK and a certain SANTOS - a
Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still remember. It
was written in a long bond paper with PNP Letterhead. It was not shown to us, yet
Col. Kasim was the one who read it for us.
He asked a favor to me that Please dont quote my Name! Because this is a raw
report. He assured me that my husband is alive and he is in the custody of the
military for custodial investigation.I told him to please take care of my husband
because he has aliments and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from
Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in
relation particularly with the information she received from Col. Kasim. Mrs.
Talbin testified that she was with the respondent when she went to Zamboanga to
see Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.[42]
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told
them that there was a report and that he showed them a series of text messages from
Tagitis cellular phone, which showed that Tagitis and his daughter would meet in
Manila on October 30, 2007.[43]
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and
Mini Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent asked Col.
Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that
Tagitis was in good hands, although he was not certain whether he was with the
PNP or with the Armed Forces of the Philippines (AFP). She further recounted that
based on the report Col. Kasim read in their presence, Tagitis was under custodial
investigation because he was being charged with terrorism; Tagitis in fact had been
under surveillance since January 2007 up to the time he was abducted when he was
seen talking to Omar Patik and a certain Santos of Bulacan, a Balik Islam charged
with terrorism. Col. Kasim also told them that he could not give a copy of the report
because it was a raw report.[45] She also related that the Col. Kasim did not tell them
exactly where Tagitis was being kept, although he mentioned Talipapao,
Sulu.Prof., lalabas din yan.[50] Prof. Matli also emphasized that despite what his January 4,
2008 affidavit indicated,[51] he never told PS Supt. Pingay, or made any accusation,
that Tagitis took away money entrusted to him.[52] Prof. Matli confirmed, however,
that that he had received an e-mail report[53] from Nuraya Lackian of the Office of
Muslim Affairs in Manila that the IDB was seeking assistance of the office in
locating the funds of IDB scholars deposited in Tagitis personal account. [54]
On cross-examination by the respondents counsel, Prof. Matli testified that his
January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to
sign it.[55]Prof Matli clarified that although he read the affidavit before signing it,
he was not so much aware of [its] contents.[56]
On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondents testimony, particularly the allegation that he had stated
that Tagitis was in the custody of either the military or the PNP.[57] Col. Kasim
categorically denied the statements made by the respondent in her narrative report,
specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for
the injured terrorists; (2) that Tagitis was under the custody of the military, since
he merely said to the respondent that your husband is in good hands and is
probably taken cared of by his armed abductors; and (3) that Tagitis was under
custodial investigation by the military, the PNP or the CIDG Zamboanga
City.[58] Col. Kasim emphasized that the informal letter he received from his
informant in Sulu did not indicate that Tagitis was in the custody of the
CIDG.[59] He also stressed that the information he provided to the respondent was
merely a raw report sourced from barangay intelligence that still needed
confirmation and follow-up as to its veracity.[60]
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a civilian asset, through a
letter which he considered as unofficial.[61] Col. Kasim stressed that the letter was
only meant for his consumption and not for reading by others.[62] He testified further
that he destroyed the letter right after he read it to the respondent and her
companions because it was not important to him and also because the information
it contained had no importance in relation with the abduction of Tagitis.[63] He
explained that he did not keep the letter because it did not contain any information
regarding the whereabouts of Tagitis and the person(s) responsible for his
abduction.[64]
In the same hearing on February 11, 2008, the petitioners also presented Police
Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to
disprove the respondents allegation that Tagitis was in the custody of CIDG-
Zamboanga City.[65] Col. Pante clarified that the CIDG was the investigative arm
of the PNP, and that the CIDG investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered as heinous
crimes.[66] Col. Pante further testified that the allegation that 9 RCIDU personnel
were involved in the disappearance of Tagitis was baseless, since they did not
conduct any operation in Jolo, Sulu before or after Tagitis reported
disappearance.[67] Col. Pante added that the four (4) personnel assigned to the Sulu
CIDT had no capability to conduct any operation, since they were only assigned to
investigate matters and to monitor the terrorism situation. [68] He denied that his
office conducted any surveillance on Tagitis prior to the latters
disappearance.[69] Col. Pante further testified that his investigation of Tagitis
disappearance was unsuccessful; the investigation was still facing a blank wall on
the whereabouts of Tagitis.[70]
THE CA RULING
On March 7, 2008, the CA issued its decision[71] confirming that the disappearance
of Tagitis was an enforced disappearance under the United Nations (UN)
Declaration on the Protection of All Persons from Enforced Disappearances.[72] The
CA ruled that when military intelligence pinpointed the investigative arm of the
PNP (CIDG) to be involved in the abduction, the missing-person case qualified as
an enforced disappearance. The conclusion that the CIDG was involved was based
on the respondents testimony, corroborated by her companion, Mrs. Talbin. The
CA noted that the information that the CIDG, as the police intelligence arm, was
involved in Tagitis abduction came from no less than the military an independent
agency of government. The CA thus greatly relied on the raw report from Col.
Kasims asset, pointing to the CIDGs involvement in Tagitis abduction.The CA held
that raw reports from an asset carried great weight in the intelligence world. It also
labeled as suspect Col. Kasims subsequent and belated retraction of his statement
that the military, the police, or the CIDG was involved in the abduction of Tagitis.
The CA characterized as too farfetched and unbelievable and a bedlam of
speculation police theories painting the disappearance as intentional on the part of
Tagitis. He had no previous brushes with the law or any record of overstepping the
bounds of any trust regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she did not get his
or her stipend. The CA also found no basis for the police theory that Tagitis was
trying to escape from the clutches of his second wife, on the basis of the respondents
testimony that Tagitis was a Muslim who could have many wives under the Muslim
faith, and that there was no issue at all when the latter divorced his first wife in
order to marry the second. Finally, the CA also ruled out kidnapping for ransom by
the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis
disappearance, since the respondent, the police and the military noted that there was
no acknowledgement of Tagitis abduction or demand for payment of ransom the
usual modus operandi of these terrorist groups.

Based on these considerations, the CA thus extended the privilege of the writ to
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP
Chief Avelino I. Razon, TASK FORCE TAGITIS heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and security of Tagitis,
with the obligation to provide monthly reports of their actions to the CA. At the
same time, the CA dismissed the petition against the then respondents from the
military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that
it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the
CA denied the motion in its Resolution of April 9, 2008. [73]
THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners
mainly dispute the sufficiency in form and substance of the Amparo petition filed
before the CA; the sufficiency of the legal remedies the respondent took before
petitioning for the writ; the finding that the rights to life, liberty and security of
Tagitis had been violated; the sufficiency of evidence supporting the conclusion
that Tagitis was abducted; the conclusion that the CIDG Zamboanga was
responsible for the abduction; and, generally, the ruling that the respondent
discharged the burden of proving the allegations of the petition by substantial
evidence.[74]
THE COURTS RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the
respondents Amparo petition, the petitioners contend that the petition violated
Section 5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege
that the respondent failed to:
1) allege any act or omission the petitioners committed in violation of Tagitis
rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons
responsible for his disappearance, and the respondents source
of information;
3) allege that the abduction was committed at the petitioners instructions or
with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to
have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis disappearance;
and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall
allege, among others (in terms of the portions the petitioners cite):[75]
(c) The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or omission
of the respondent, and how such threat or violation is committed
with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
 authority or individuals, as well as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine
the fate or whereabouts of the aggrieved party and the identity of the
person responsible for the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be complete
in every detail in stating the threatened or actual violation of a victims rights. As in
any other initiatory pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details.[76] In
an Amparo petition, however, this requirement must be read in light of the nature
and purpose of the proceeding, which addresses a situation of uncertainty; the
petitioner may not be able to describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where
the victim is detained, because these information may purposely be hidden or
covered up by those who caused the disappearance. In this type of situation, to
require the level of specificity, detail and precision that the petitioners apparently
want to read into the Amparo Rule is to make this Rule a token gesture of judicial
concern for violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the
unique Amparo situation, the test in reading the petition should be to determine
whether it contains the details available to the petitioner under the
circumstances, while presenting a cause of action showing a violation of the victims
rights to life, liberty and security through State or private party action. The petition
should likewise be read in its totality, rather than in terms of its isolated component
parts, to determine if the required elements namely, of the disappearance, the State
or private action, and the actual or threatened violations of the rights to life, liberty
or security are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging in
normal activities, and thereafter was nowhere to be found despite efforts to locate
him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15
and 16, that according to reliable information, police operatives were the
perpetrators of the abduction. It also clearly alleged how Tagitis rights to life,
liberty and security were violated when he was forcibly taken and boarded on a
motor vehicle by a couple of burly men believed to be police intelligence
operatives, and then taken into custody by the respondents police intelligence
operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga City,
x x x held against his will in an earnest attempt of the police to involve and connect
[him] with different terrorist groups. [77]
These allegations, in our view, properly pleaded ultimate facts within the
pleaders knowledge about Tagitis disappearance, the participation by agents of the
State in this disappearance, the failure of the State to release Tagitis or to provide
sufficient information about his whereabouts, as well as the actual violation of his
right to liberty. Thus, the petition cannot be faulted for any failure in its statement
of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of
supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the
summary nature of the proceedings for the writ and to facilitate the resolution of
the petition, the Amparo Rule incorporated the requirement for supporting
affidavits, with the annotation that these can be used as the affiants direct
testimony.[78] This requirement, however, should not be read as an absolute one that
necessarily leads to the dismissal of the petition if not strictly followed. Where, as
in this case, the petitioner has substantially complied with the requirement by
submitting a verified petition sufficiently detailing the facts relied upon, the strict
need for the sworn statement that an affidavit represents is essentially fulfilled. We
note that the failure to attach the required affidavits was fully cured when the
respondent and her witness (Mrs. Talbin) personally testified in the CA hearings
held on January 7 and 17 and February 18, 2008 to swear to and flesh out the
allegations of the petition. Thus, even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an
alleged disappearance must have been made, specifying the manner and results of
the investigation.Effectively, this requirement seeks to establish at the earliest
opportunity the level of diligence the public authorities undertook in relation with
the reported disappearance.[79]
We reject the petitioners argument that the respondents petition did not
comply with the Section 5(d) requirements of the Amparo Rule, as the petition
specifies in its paragraph 11 that Kunnong and his companions immediately
reported Tagitis disappearance to the police authorities in Jolo, Sulu as soon as they
were relatively certain that he indeed had disappeared. The police, however, gave
them the ready answer that Tagitis could have been abducted by the Abu Sayyaf
group or other anti-government groups. The respondent also alleged in paragraphs
17 and 18 of her petition that she filed a complaint with the PNP Police Station in
Cotobato and in Jolo, but she was told of an intriguing tale by the police that her
husband was having a good time with another woman. The disappearance was
alleged to have been reported, too, to no less than the Governor of the ARMM,
followed by the respondents personal inquiries that yielded the factual bases for her
petition.[80]
These allegations, to our mind, sufficiently specify that reports have been
made to the police authorities, and that investigations should have followed. That
the petition did not state the manner and results of the investigation that
the Amparo Rule requires, but rather generally stated the inaction of the police,
their failure to perform their duty to investigate, or at the very least, their reported
failed efforts, should not be a reflection on the completeness of the petition. To
require the respondent to elaborately specify the names, personal circumstances,
and addresses of the investigating authority, as well the manner and conduct of the
investigation is an overly strict interpretation of Section 5(d), given the respondents
frustrations in securing an investigation with meaningful results. Under these
circumstances, we are more than satisfied that the allegations of the petition on the
investigations undertaken are sufficiently complete for purposes of bringing the
petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition that
otherwise is not supported by sufficient allegations to constitute a proper cause of
action as a means to fish for evidence.[81] The petitioners contend that the
respondents petition did not specify what legally available efforts were taken by the
respondent, and that there was an undue haste in the filing of the petition when,
instead of cooperating with authorities, the respondent immediately invoked the
Courts intervention.

We do not see the respondents petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in
the present case) allege the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission. The following allegations of the respondents petition
duly outlined the actions she had taken and the frustrations she encountered, thus
compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take
his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a motor
vehicle then sped away without the knowledge of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter
to the police authorities in Jolo, he was immediately given a ready answer that
Engr. Tagitis could [have been] abducted by the Abu Sayyaf group and other
groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers, Kunnong
reported the matter to the [respondent](wife of Engr. Tagitis) by phone and other
responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines who alerted the office of the Governor of ARMM who was then
preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees
with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise
sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject Engr. Tagitis
is in the custody of police intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest attempt of the police to
involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [the respondents] request and pleadings failed to produce any
positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM
Police Headquarters again in Cotobato City and also to the different Police
Headquarters including the police headquarters in Davao City, in Zamboanga
City, in Jolo, and in Camp Crame, Quezon City, and all these places have been
visited by the [respondent] in search for her husband, which entailed expenses for
her trips to these places thereby resorting her to borrowings and beggings [sic] for
financial help from friends and relatives only to try complying to the different
suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but
to no avail, and under the circumstances, [respondent] has no other plain, speedy
and adequate remedy to protect and get the release of subject Engr. Morced Tagitis
from the illegal clutches of [the petitioners], their intelligence operatives and the
like which are in total violation of the subjects human and constitutional rights,
except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondents petition for the
Writ of Amparo is sufficient in form and substance and that the Court of Appeals
had every reason to proceed with its consideration of the case.

The Desaparecidos
The present case is one of first impression in the use and application of the
Rule on the Writ of Amparo in an enforced disappearance situation. For a deeper
appreciation of the application of this Rule to an enforced disappearance situation,
a brief look at the historical context of the writ and enforced disappearances would
be very helpful.
The phenomenon of enforced disappearance arising from State action first
attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of
December 7, 1941.[82] The Third Reichs Night and Fog Program, a State policy, was
directed at persons in occupied territories endangering German security; they were
transported secretly to Germany where they disappeared without a trace. In order
to maximize the desired intimidating effect, the policy prohibited government
officials from providing information about the fate of these targeted persons. [83]
In the mid-1970s, the phenomenon of enforced disappearances resurfaced,
shocking and outraging the world when individuals, numbering anywhere from
6,000 to 24,000, were reported to have disappeared during the military regime in
Argentina. Enforced disappearances spread in Latin America, and the issue became
an international concern when the world noted its widespread and systematic use
by State security forces in that continent under Operation Condor[84] and during the
Dirty War[85] in the 1970s and 1980s. The escalation of the practice saw political
activists secretly arrested, tortured, and killed as part of governments counter-
insurgency campaigns. As this form of political brutality became routine elsewhere
in the continent, the Latin American media standardized the term disappearance to
describe the phenomenon. The victims of enforced disappearances were called
the desaparecidos,[86] which literally means the disappeared ones.[87] In general,
there are three different kinds of disappearance cases:
1) those of people arrested without witnesses or without positive identification
of the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate warrant and
held in complete isolation for weeks or months while their families are unable
to discover their whereabouts and the military authorities deny having them in
custody until they eventually reappear in one detention center or another; and
3) those of victims of salvaging who have disappeared until their lifeless bodies
are later discovered.[88]
In the Philippines, enforced disappearances generally fall within the first two
categories,[89] and 855 cases were recorded during the period of martial law from
1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and 127
were found dead. During former President Corazon C. Aquinos term, 820 people
were reported to have disappeared and of these, 612 cases were documented. Of
this number, 407 remain missing, 108 surfaced alive and 97 were found dead. The
number of enforced disappearances dropped during former President Fidel V.
Ramos term when only 87 cases were reported, while the three-year term of former
President Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local non-
governmental organization, reports that as of March 31, 2008, the records show that
there were a total of 193 victims of enforced disappearance under incumbent
President Gloria M. Arroyos administration. The Commission on Human Rights
records show a total of 636 verified cases of enforced disappearances from 1985 to
1993. Of this number, 406 remained missing, 92 surfaced alive, 62 were found
 organizations and others. So, again we need to define the nature of the
dead, and 76 still have undetermined status.[90] Currently, the United Nations extrajudicial killings and enforced disappearances that will be covered by these
Working Group on Enforced or Involuntary Disappearance[91] reports 619 rules. [Emphasis supplied] [95]
outstanding cases of enforced or involuntary disappearances covering the period
December 1, 2007 to November 30, 2008.[92] In the end, the Committee took cognizance of several bills filed in the House
of Representatives[96] and in the Senate[97] on extrajudicial killings and enforced
Enforced Disappearances disappearances, and resolved to do away with a clear textual definition of these
Under Philippine Law
terms in the Rule. The Committee instead focused on the nature and scope of the
concerns within its power to address and provided the appropriate remedy therefor,
The Amparo Rule expressly provides that the writ shall cover extralegal
mindful that an elemental definition may intrude into the ongoing legislative
killings and enforced disappearances or threats thereof.[93] We note that although
efforts.[98]
the writ specifically covers enforced disappearances, this concept is neither defined
nor penalized in this jurisdiction. The records of the Supreme Court Committee on
As the law now stands, extra-judicial killings and enforced disappearances in
the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule
this jurisdiction are not crimes penalized separately from the component criminal
initially considered providing an elemental definition of the concept of enforced
acts undertaken to carry out these killings and enforced disappearances and are now
disappearance:[94]
penalized under the Revised Penal Code and special laws.[99] The simple reason is
JUSTICE MARTINEZ: I believe that first and foremost we should come up or that the Legislature has not spoken on the matter; the determination of what acts
formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the rules, are criminal and what the corresponding penalty these criminal acts should carry
definite rules concerning the same. are matters of substantive law that only the Legislature has the power to enact under
CHIEF JUSTICE PUNO: As things stand, there is no law penalizing the countrys constitutional scheme and power structure.
extrajudicial killings and enforced disappearances so initially also we have to
[come up with] the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our concept of killings Even without the benefit of directly applicable substantive laws on extra-
and disappearances will define the jurisdiction of the courts. So well have to
judicial killings and enforced disappearances, however, the Supreme Court is not
agree among ourselves about the nature of killings and disappearances for
instance, in other jurisdictions, the rules only cover state actors. That is an element powerless to act under its own constitutional mandate to promulgate rules
incorporated in their concept of extrajudicial killings and enforced
concerning the protection and enforcement of constitutional rights, pleading,
disappearances. In other jurisdictions, the concept includes acts and omissions not
only of state actors but also of non state actors. Well, more specifically in the case practice and procedure in all courts,[100]since extrajudicial killings and enforced
of the Philippines for instance, should these rules include the killings, the
disappearances which may be authored by let us say, the NPAs or the leftist
disappearances, by their nature and purpose, constitute State or private party
violation of the constitutional rights of individuals to life, liberty and
security. Although the Courts power is strictly procedural and as such does not
diminish, increase or modify substantive rights, the legal protection that the Court
can provide can be very meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set the procedural standards and thereby directly compel the
public authorities to act on actual or threatened violations of constitutional rights.
To state the obvious, judicial intervention can make a difference even if only
procedurally in a situation when the very same investigating public authorities may
have had a hand in the threatened or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we
do not rule on any issue of criminal culpability for the extrajudicial killing or
enforced disappearance. This is an issue that requires criminal action before our
criminal courts based on our existing penal laws. Our intervention is in determining
whether an enforced disappearance has taken place and who is responsible or
accountable for this disappearance, and to define and impose the appropriate
remedies to address it. The burden for the public authorities to discharge in these
situations, under the Rule on the Writ of Amparo, is twofold. The first is to ensure
that all efforts at disclosure and investigation are undertaken under pain of indirect
contempt from this Court when governmental efforts are less than what the
individual situations require. The second is to address the disappearance, so that the
life of the victim is preserved and his or her liberty and security restored. In these
senses, our orders and directives relative to the writ are continuing efforts that are
not truly terminated until the extrajudicial killing or enforced disappearance is fully
addressed by the complete determination of the fate and the whereabouts of the
victim, by the production of the disappeared person and the restoration of his or her
liberty and security, and, in the proper case, by the commencement of criminal
action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human rights.[101] It does not
only violate the right to life, liberty and security of the desaparecido; it affects their
families as well through the denial of their right to information regarding the
circumstances of the disappeared family member. Thus, enforced disappearances
have been said to be a double form of torture, with doubly paralyzing impact for
the victims, as they are kept ignorant of their own fates, while family members are
deprived of knowing the whereabouts of their detained loved ones and suffer as
well the serious economic hardship and poverty that in most cases follow the
disappearance of the household breadwinner.[102]
The UN General Assembly first considered the issue of Disappeared Persons
in December 1978 under Resolution 33/173. The Resolution expressed the General
Assemblys deep concern arising from reports from various parts of the world
relating to enforced or involuntary disappearances, and requested the UN
Commission on Human Rights to consider the issue of enforced disappearances
with a view to making appropriate recommendations.[103]
 In 1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).[104] This Declaration, for the first time, provided in
its third preambular clause a working description of enforced disappearance, as
follows:
Deeply concerned that in many countries, often in a persistent manner,
enforced disappearances occur, in the sense that persons are arrested, detained
or abducted against their will or otherwise deprived of their liberty by
officials of different branches or levels of Government, or by organized
groups or private individuals acting on behalf of, or with the support, direct
or indirect, consent or acquiescence of the Government, followed by a refusal
to disclose the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such persons outside
the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).[105] The Convention was opened for
signature in Paris, France on February 6, 2007.[106] Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this Convention, enforced disappearance is
considered to be the arrest, detention, abduction or any other form of deprivation
of liberty by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there is
a right not to be subject to enforced disappearance[107] and that this right is non-
derogable.[108] It provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political instability, or any
other public emergency. It obliges State Parties to codify enforced disappearance
as an offense punishable with appropriate penalties under their criminal law. [109] It
also recognizes the right of relatives of the disappeared persons and of the society
as a whole to know the truth on the fate and whereabouts of the disappeared and on
the progress and results of the investigation.[110] Lastly, it classifies enforced
disappearance as a continuing offense, such that statutes of limitations shall not
apply until the fate and whereabouts of the victim are established. [111]
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that the
country is not yet committed to enact any law penalizing enforced disappearance
as a crime.The absence of a specific penal law, however, is not a stumbling block
for action from this Court, as heretofore mentioned; underlying every enforced
disappearance is a violation of the constitutional rights to life, liberty and security
that the Supreme Court is mandated by the Constitution to protect through its rule-
making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is
guided, in acting on Amparo cases, by the reality that the Philippines is a member
of the UN, bound by its Charter and by the various conventions we signed and
ratified, particularly the conventions touching on humans rights. Under the UN
Charter, the Philippines pledged to promote universal respect for, and observance
of, human rights and fundamental freedoms for all without distinctions as to race,

sex, language or religion.[112]Although no universal agreement has been reached on
the precise extent of the human rights and fundamental freedoms guaranteed to all
by the Charter,[113] it was the UN itself that issued the Declaration on enforced
disappearance, and this Declaration states:[114]
Any act of enforced disappearance is an offence to dignity. It is condemned as
a denial of the purposes of the Charter of the United Nations and as a grave
and flagrant violation of human rights and fundamental freedoms
proclaimed in the Universal Declaration of Human Rights and reaffirmed and
developed in international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter made
in a UN Declaration, the ban on enforced disappearance cannot but have its effects
on the country, given our own adherence to generally accepted principles of
international law as part of the law of the land.[115]
In the recent case of Pharmaceutical and Health Care Association of the
Philippines v. Duque III,[116] we held that:
Under the 1987 Constitution, international law can become part of the
sphere of domestic law either by transformation or incorporation. 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. [Emphasis
supplied]
We characterized generally accepted principles of international law as norms of
general or customary international law that are binding on all states. We held
further:[117]
[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. [Emphasis in the original]
The most widely accepted statement of sources of international law today is
Article 38(1) of the Statute of the International Court of Justice, which provides
that the Court shall apply international custom, as evidence of a general practice
accepted as law.[118] The material sources of custom include State practice, State
legislation, international and national judicial decisions, recitals in treaties and
other international instruments, a pattern of treaties in the same form, the practice
of international organs, and resolutions relating to legal questions in the UN
General Assembly.[119] Sometimes referred to as evidence of international
law,[120] these sources identify the substance and content of the obligations of States
and are indicative of the State practice and opinio juris requirements of
international law.[121] We note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization
of American States (OAS) General Assembly adopted the Inter-American
Convention on Enforced Disappearance of Persons in June 1994.[122] State parties
undertook under this Convention not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or suspension of individual
guarantees.[123] One of the key provisions includes the States obligation to enact the
crime of forced disappearance in their respective national criminal laws and to
establish jurisdiction over such cases when the crime was committed within their
jurisdiction, when the victim is a national of that State, and when the alleged
criminal is within its territory and it does not proceed to extradite him, which can
be interpreted as establishing universal jurisdiction among the parties to the Inter-
American Convention.[124] At present, Colombia, Guatemala, Paraguay, Peru and
Venezuela have enacted separate laws in accordance with the Inter-American
Convention and have defined activities involving enforced disappearance to be
criminal.[125]
Second, in Europe, the European Convention on Human Rights has no
explicit provision dealing with the protection against enforced disappearance. The
European Court of Human Rights (ECHR), however, has applied the Convention
in a way that provides ample protection for the underlying rights affected by
enforced disappearance through the Conventions Article 2 on the right to life;
Article 3 on the prohibition of torture; Article 5 on the right to liberty and security;
Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the right to an
effective remedy. A leading example demonstrating the protection afforded by the
European Convention is Kurt v. Turkey,[126] where the ECHR found a violation of
the right to liberty and security of the disappeared person when the applicants son
disappeared after being taken into custody by Turkish forces in the Kurdish village
of Agilli in November 1993. It further found the applicant (the disappeared persons
mother) to be a victim of a violation of Article 3, as a result of the silence of the
authorities and the inadequate character of the investigations undertaken. The
ECHR also saw the lack of any meaningful investigation by the State as a violation
of Article 13.[127]
Third, in the United States, the status of the prohibition on enforced
disappearance as part of customary international law is recognized in the most
recent edition of Restatement of the Law: The Third,[128] which provides that [a]
State violates international law if, as a matter of State policy, it practices,
encourages, or condones (3) the murder or causing the disappearance of
individuals.[129] We significantly note that in a related matter that finds close
identification with enforced disappearance the matter of torture the United States
Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-
Irala[130] that the prohibition on torture had attained the status of customary
international law. The court further elaborated on the significance of UN
declarations, as follows:
These U.N. declarations are significant because they specify with great
precision the obligations of member nations under the Charter. Since their
adoption, "(m)embers can no longer contend that they do not know what human
rights they promised in the Charter to promote. Moreover, a U.N. Declaration is,
according to one authoritative definition, "a formal and solemn instrument,
suitable for rare occasions when principles of great and lasting importance are
being enunciated. Accordingly, it has been observed that the Universal
Declaration of Human Rights "no longer fits into the dichotomy of binding treaty
against non-binding pronouncement,' but is rather an authoritative statement of the
international community." Thus, a Declaration creates an expectation of
adherence, and "insofar as the expectation is gradually justified by State practice,
a declaration may by custom become recognized as laying down rules binding
upon the States." Indeed, several commentators have concluded that the Universal
Declaration has become, in toto, a part of binding, customary international law.
[Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of
the International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights Committee,
under the Office of the High Commissioner for Human Rights, has stated that the
act of enforced disappearance violates Articles 6 (right to life), 7 (prohibition on
torture, cruel, inhuman or degrading treatment or punishment) and 9 (right to liberty
and security of the person) of the ICCPR, and the act may also amount to a crime
against humanity.[131]
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the
International Criminal Court (ICC) also covers enforced disappearances insofar as
they are defined as crimes against humanity,[132] i.e., crimes committed as part of a
widespread or systematic attack against any civilian population, with knowledge of
the attack. While more than 100 countries have ratified the Rome Statute,[133] the
Philippines is still merely a signatory and has not yet ratified it. We note that Article
7(1) of the Rome Statute has been incorporated in the statutes of other international
and hybrid tribunals, including Sierra Leone Special Court, the Special Panels for
Serious Crimes in Timor-Leste, and the Extraordinary Chambers in the Courts of
Cambodia.[134] In addition, the implementing legislation of State Parties to the
Rome Statute of the ICC has given rise to a number of national criminal provisions
also covering enforced disappearance.[135]
While the Philippines is not yet formally bound by the terms of the
Convention on enforced disappearance (or by the specific terms of the Rome
Statute) and has not formally declared enforced disappearance as a specific crime,
the above recital shows that enforced disappearance as a State practice has been
repudiated by the international community, so that the ban on it is now
a generally accepted principle of international law, which we should consider a
part of the law of the land, and which we should act upon to the extent already
allowed under our laws and the international conventions that bind us.
The following civil or political rights under the Universal Declaration of
Human Rights, the ICCPR and the International Convention on Economic, Social
and Cultural Rights (ICESR) may be infringed in the course of a disappearance:[136]
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and
compensation;
8) the right to know the truth regarding the circumstances of a
disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(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. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the
right to an effective remedy under Article 2 of the ICCPR includes the obligation
of the State to investigate ICCPR violations promptly, thoroughly, and
effectively, viz:[137]
 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 The
Committee attaches importance to States Parties' establishing appropriate
judicial and administrative mechanisms for addressing claims of rights
violations under domestic law Administrative mechanisms are
particularly required to give effect to the general obligation to
investigate allegations of violations promptly, thoroughly and
effectivelythrough independent and impartial bodies. 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.
[Emphasis supplied]
The UN Human Rights Committee further stated in the same General
Comment No. 31 that failure to investigate as well as failure to bring to justice the
perpetrators of ICCPR violations could in and of itself give rise to a separate breach
of the Covenant, thus:[138]
18. Where the investigations referred to in paragraph 15 reveal violations
of certain Covenant rights, States Parties must ensure that those
responsible are brought to justice. As with failure to investigate,
failure to bring to justice perpetrators of such violations could in and
of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as
criminal under either domestic or international law, such as torture
and similar cruel, inhuman and degrading treatment (article 7), summary
and arbitrary killing (article 6) and enforced disappearance (articles 7
and 9 and, frequently, 6). Indeed, the problem of impunity for these
violations, a matter of sustained concern by the Committee, may well be
an important contributing element in the recurrence of the violations.
When committed as part of a widespread or systematic attack on a
civilian population, these violations of the Covenant are crimes against
humanity (see Rome Statute of the International Criminal Court, article
7). [Emphasis supplied]
In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the
right to security of persons is a guarantee of the protection of ones right by the
government, held that:
The right to security of person in this third sense is a corollary of the
policy that the State guarantees full respect for human rights under
Article II, Section 11 of the 1987 Constitution. As the government is the
chief guarantor of order and security, the Constitutional guarantee of the
rights to life, liberty and security of person is rendered ineffective if
government does not afford protection to these rights especially when
they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in the Velasquez
Rodriguez Case, viz:
(The duty to investigate) must be undertaken in
a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have
an objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or
upon their offer of proof, without an effective search for the
truth by the government. [Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the
right to security not only as a prohibition on the State against arbitrary deprivation
of liberty, but also as the imposition of a positive duty to afford protection to the
right to liberty. The Court notably quoted the following ECHR ruling:
 [A]ny deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law but
must equally be in keeping with the very purpose of Article 5, namely to
protect the individual from arbitrariness... Having assumed control over
that individual, it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into
an arguable claim that a person has been taken into custody and has
not been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ
of Amparo, which the Court made effective on October 24, 2007. Although
the Amparo Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of enforced
disappearance, the materials cited above, among others, provide ample
guidance and standards on how, through the medium of the Amparo Rule, the
Court can provide remedies and protect the constitutional rights to life, liberty
and security that underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has discharged the
burden of proving the allegations of the petition for the Writ of Amparo by the
degree of proof required by the Amparo Rule, we shall discuss briefly the unique
evidentiary difficulties presented by enforced disappearance cases; these
difficulties form part of the setting that the implementation of the Amparo Rule
shall encounter.
These difficulties largely arise because the State itself the party whose
involvement is alleged investigates enforced disappearances. Past experiences in
other jurisdictions show that the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the direct
perpetrators.[141] Experts note that abductors are well organized, armed and
usually members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons
acting under some form of governmental authority. In many countries the
units that plan, implement and execute the program are generally
specialized, highly-secret bodies within the armed or security forces.
They are generally directed through a separate, clandestine chain of
command, but they have the necessary credentials to avoid or prevent any
interference by the "legal" police forces. These authorities take their
victims to secret detention centers where they subject them to
interrogation and torture without fear of judicial or other controls.[142]
In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the disappearance
out of fear for their own lives.[143] We have had occasion to note this difficulty
in Secretary of Defense v. Manalo[144] when we acknowledged that where powerful
military officers are implicated, the hesitation of witnesses to surface and testify
against them comes as no surprise.
Second, deliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; the central piece of evidence in an enforced
disappearance i.e., the corpus delicti or the victims body is usually concealed to
effectively thwart the start of any investigation or the progress of one that may have
begun.[145] The problem for the victims family is the States virtual monopoly of
access to pertinent evidence. The Inter-American Court of Human Rights (IACHR)
observed in the landmark case of Velasquez Rodriguez[146] that inherent to the
practice of enforced disappearance is the deliberate use of the States power to
destroy the pertinent evidence. The IACHR described the concealment as a clear
attempt by the State to commit the perfect crime.[147]
Third is the element of denial; in many cases, the State authorities
deliberately deny that the enforced disappearance ever occurred.[148] Deniability is
central to the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards ensuring
the victims human rights.[149]Experience shows that government officials typically
respond to requests for information about desaparecidos by saying that they are not
aware of any disappearance, that the missing people may have fled the country, or
that their names have merely been invented.[150]
These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof the parties to the case
carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall
be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The
parties shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that
ordinary diligence as required by applicable laws, rules and regulations
was observed in the performance of duty.
The respondent who is a public official or employee must prove
that extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed or evade
responsibility or liability.
Section 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate; otherwise, the privilege
shall be denied. [Emphasis supplied]
These characteristics namely, of being summary and the use of substantial
evidence as the required level of proof (in contrast to the usual preponderance of
evidence or proof beyond reasonable doubt in court proceedings) reveal the clear
intent of the framers of the Amparo Rule to have the equivalent of an administrative
proceeding, albeit judicially conducted, in addressing Amparo situations. The
standard of diligence required the duty of public officials and employees to observe
extraordinary diligence point, too, to the extraordinary measures expected in the
protection of constitutional rights and in the consequent handling and investigation
of extra-judicial killings and enforced disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly
comply with the substance and form requirements of a Writ of Amparo petition, as

discussed above, and prove the allegations by substantial evidence. Once a
rebuttable case has been proven, the respondents must then respond and prove their
defenses based on the standard of diligence required. The rebuttable case, of course,
must show that an enforced disappearance took place under circumstances showing
a violation of the victims constitutional rights to life, liberty or security, and the
failure on the part of the investigating authorities to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations[151] provided
the Court its first opportunity to define the substantial evidence required to arrive
at a valid decision in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion. [citations omitted] The statute provides that the rules of evidence
prevailing in courts of law and equity shall not be controlling. The obvious
purpose of this and similar provisions is to free administrative boards from the
compulsion of technical rules so that the mere admission of matter which would
be deemed incompetent in judicial proceedings would not invalidate the
administrative order. [citations omitted] But this assurance of a desirable
flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,[152] which was the Courts first petition for
a Writ of Amparo, we recognized that the full and exhaustive proceedings that the
substantial evidence standard regularly requires do not need to apply due to the
summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it
partakes of a summary proceeding that requires only substantial evidence to make
the appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility requiring
substantial evidence that will require full and exhaustive
proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects
of Amparo petitions are the unique difficulties presented by the nature of enforced
disappearances, heretofore discussed, which difficulties this Court must frontally
meet if the Amparo Rule is to be given a chance to achieve its objectives. These
evidentiary difficulties compel the Court to adopt standards appropriate and
responsive to the circumstances, without transgressing the due process
requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a lack
of direct evidence that the government of Honduras was involved in Velasquez
Rodriguez disappearance adopted a relaxed and informal evidentiary standard, and
established the rule that presumes governmental responsibility for a disappearance
if it can be proven that the government carries out a general practice of enforced
disappearances and the specific case can be linked to that practice.[154] The IACHR
took note of the realistic fact that enforced disappearances could be proven only
through circumstantial or indirect evidence or by logical inference; otherwise, it
was impossible to prove that an individual had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct
evidence, whether testimonial or documentary, is not the only type of
evidence that may be legitimately considered in reaching a
decision. Circumstantial evidence, indicia, and presumptions may be
considered, so long as they lead to conclusions consistent with the
facts.
131. Circumstantial or presumptive evidence is especially important
in allegations of disappearances, because this type of repression is
characterized by an attempt to suppress all information about the
 kidnapping or the whereabouts and fate of the victim. [Emphasis
supplied]
In concluding that the disappearance of Manfredo Velsquez (Manfredo) was
carried out by agents who acted under cover of public authority, the IACHR relied
on circumstantial evidence including the hearsay testimony of Zenaida
Velsquez, the victims sister, who described Manfredos kidnapping on the basis of
conversations she had with witnesses who saw Manfredo kidnapped by men in
civilian clothes in broad daylight. She also told the Court that a former Honduran
military official had announced that Manfredo was kidnapped by a special military
squadron acting under orders of the Chief of the Armed Forces.[155] The IACHR
likewise considered the hearsay testimony of a second witness who asserted that he
had been told by a Honduran military officer about the disappearance, and a third
witness who testified that he had spoken in prison to a man who identified himself
as Manfredo.[156]
Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the problem if a wrong is
addressed by the commission of another wrong. On the other hand, we cannot be
very strict in our evidentiary rules and cannot consider evidence the way we do in
the usual criminal and civil cases; precisely, the proceedings before us are
administrative in nature where, as a rule, technical rules of evidence are not strictly
observed. Thus, while we must follow the substantial evidence rule, we must
observe flexibility in considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible under
our usual rules to be admissible if it is consistent with the admissible evidence
adduced. In other words, we reduce our rules to the most basic test of reason i.e.,
to the relevance of the evidence to the issue at hand and its consistency with all
other pieces of adduced evidence. Thus, even hearsay evidence can be admitted
if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of evidence is
not at all novel in the Philippine legal system. In child abuse cases, Section 28 of
the Rule on Examination of a Child Witness[157] is expressly recognized as an
exception to the hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites and the right
of cross-examination by the adverse party. The admission of the statement is
determined by the court in light of specified subjective and objective considerations
that provide sufficient indicia of reliability of the child witness.[158] These requisites
for admission find their counterpart in the present case under the above-described
conditions for the exercise of flexibility in the consideration of evidence, including
hearsay evidence, in extrajudicial killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN Declaration we have
cited?
The Convention defines enforced disappearance as the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or acquiescence
of the State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place such
a person outside the protection of the law.[159] Under this definition, the elements
that constitute enforced disappearance are essentially fourfold:[160]
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons acting
with the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the
fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]
We find no direct evidence indicating how the victim actually
disappeared. The direct evidence at hand only shows that Tagitis went out of the
ASY Pension House after depositing his room key with the hotel desk and was
never seen nor heard of again. The undisputed conclusion, however, from all
concerned the petitioner, Tagitis colleagues and even the police authorities is that
Tagistis disappeared under mysterious circumstances and was never seen
again. The respondent injected the causal element in her petition and testimony, as
we shall discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG
Zamboanga abducted or arrested Tagitis. If at all, only the respondents allegation
that Tagistis was under CIDG Zamboanga custody stands on record, but it is not
supported by any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information
as her bases for her allegation that Tagistis had been placed under government
custody (in contrast with CIDG Zamboanga custody). The first was an unnamed
friend in Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis was in good
hands. Nothing came out of this claim, as both the respondent herself and her
witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any
information that Tagitis was in government custody. Col. Ancanan, for his part,
admitted the meeting with the respondent but denied giving her any information
about the disappearance.
The more specific and productive source of information was Col.
Kasim, whom the respondent, together with her witness Mrs. Talbin, met in Camp
Katitipan in Davao City. To quote the relevant portions of the respondents
testimony:
Q: Were you able to speak to other military officials regarding the
whereabouts of your husband particularly those in charge of any
records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer,
Col. Casim, told me that my husband is being abducted
[sic] because he is under custodial investigation because he is
allegedly parang liason ng J.I., sir.
Q: What is J.I.?
A: Jemaah Islamiah, sir.
 Q: Was there any information that was read to you during one of those
visits of yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said
those reports are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a
copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, maam.
Q: And a certain Col. Kasim told you that your husband was
abducted and under custodial investigation?
A: Yes, maam.
Q: And you mentioned that he showed you a report?
A: Yes, maam.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those
[sic] were highly confidential. That is a military report, maam.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, maam.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, maam.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao
Oriental, maam.[162]
xxxx
Q: When you were told that your husband is in good hands, what was
your reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with
other people na parang mga terorista na mga tao. Tapos at the
end of the report is [sic] under custodial investigation.So I told
him Colonel, my husband is sick. He is diabetic at nagmemaintain
yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan
siya ng gamot, maam.[163]
xxxx
Q: You mentioned that you received information that Engineer Tagitis is
being held by the CIDG in Zamboanga, did you go to CIDG
Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal
instead. Enough na yun na effort ko because I know that they
would deny it, maam.[164]
 On February 11, 2008, the respondent presented Mrs. Talbin to corroborate is with the AFP or PNP. He has this serious case. He was
her testimony that her husband was abducted and held under custodial investigation charged of terrorism because he was under surveillance from
January 2007 up to the time that he was abducted. He told us
by the PNP-CIDG Zamboanga City, viz:
that he was under custodial investigation. As Ive said earlier,
he was seen under surveillance from January. He was seen
Q: You said that you went to Camp Katitipan in Davao City sometime
talking to Omar Patik, a certain Santos of Bulacan who is also
November 24, 2007, who was with you when you went there?
a Balik Islam and charged with terrorism. He was seen
carrying boxes of medicines.Then we asked him how long will
A: Mary Jean Tagitis, sir.
he be in custodial investigation. He said until we can get some
information. But he also told us that he cannot give us that report
Q: Only the two of you?
because it was a raw report. It was not official, sir.
A: No. We have some other companions. We were four at that time, sir.
Q: You said that he was reading a report, was that report in document
form, in a piece of paper or was it in the computer or what?
Q: Who were they?
A: As far as I can see it, sir, it is written in white bond paper. I dont know
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
if it was computerized but Im certain that it was typewritten. Im
not sure if it used computer, fax or what, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan
during that time?
Q: When he was reading it to you, was he reading it line by line or he
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
was reading in a summary form?
Q: Were you able to talk to him?
A: Sometimes he was glancing to the report and talking to us, sir.[165]
A: Yes, sir.
xxxx
Q: Were you informed as to the place where he was being kept during
Q: The four of you?
that time?
A: Yes, sir.
A: He did not tell us where he [Tagitis] was being kept. But he
mentioned this Talipapao, Sulu, sir.
Q: What information did you get from Col. Kasim during that time?
Q: After that incident, what did you do if any?
A: The first time we met with [him] I asked him if he knew of the exact
location, if he can furnish us the location of Engr. Tagitis. And he
A: We just left and as Ive mentioned, we just waited because that raw
was reading this report. He told us that Engr. Tagitis is in good
information that he was reading to us [sic] after the custodial
hands. He is with the military, but he is not certain whether he
 investigation, Engineer Tagitis will be released. [Emphasis witnesses are lay people in so far as military and police matters are concerned, and
supplied][166]
confusion between the police and the military is not unusual. As a rule, minor
inconsistencies such as these indicate truthfulness rather than prevarication[169]and
Col. Kasim never denied that he met with the respondent and her friends, and
only tend to strengthen their probative value, in contrast to testimonies from various
that he provided them information based on the input of an unnamed asset. He
witnesses dovetailing on every detail; the latter cannot but generate suspicion that
simply claimed in his testimony that the informal letter he received from his
the material circumstances they testified to were integral parts of a well thought of
informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He
and prefabricated story.[170]
also stressed that the information he provided the respondent was merely a raw
report from barangay intelligence that still needed confirmation and follow up as
Based on these considerations and the unique evidentiary situation in
to its veracity.[167]
enforced disappearance cases, we hold it duly established that Col. Kasim
informed the respondent and her friends, based on the informants letter, that
To be sure, the respondents and Mrs. Talbins testimonies were far from
Tagitis, reputedly a liaison for the JI and who had been under surveillance
perfect, as the petitioners pointed out. The respondent mistakenly characterized
since January 2007, was in good hands and under custodial investigation for
Col. Kasim as a military officer who told her that her husband is being abducted
complicity with the JI after he was seen talking to one Omar Patik and a
because he is under custodial investigation because he is allegedly parang liason
certain Santos of Bulacan, a Balik Islam charged with terrorism. The
ng J.I. The petitioners also noted that Mrs. Talbins testimony imputing certain
respondents and Mrs. Talbins testimonies cannot simply be defeated by Col.
statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not
Kasims plain denial and his claim that he had destroyed his informants letter, the
certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim
critical piece of evidence that supports or negates the parties conflicting claims.
is a high ranking police officer who would certainly know that the PNP is not part
Col. Kasims admitted destruction of this letter effectively, a suppression of this
of the military.
evidence raises the presumption that the letter, if produced, would be proof of what
Upon deeper consideration of these inconsistencies, however, what appears the respondent claimed.[171] For brevity, we shall call the evidence of what Col.
clear to us is that the petitioners never really steadfastly disputed or presented Kasim reported to the respondent to be the Kasim evidence.
evidence to refute the credibility of the respondent and her witness, Mrs.
Talbin. The inconsistencies the petitioners point out relate, more than anything else, Given this evidence, our next step is to decide whether we can accept this
to details that should not affect the credibility of the respondent and Mrs. Talbin; evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis was
the inconsistencies are not on material points.[168] We note, for example, that these due to action with government participation, knowledge or consent and that he was
held for custodial investigation. We note in this regard that Col. Kasim was never
quoted to have said that the custodial investigation was by the CIDG
Zamboanga. The Kasim evidence only implies government intervention through
the use of the term custodial investigation, and does not at all point to CIDG
Zamboanga as Tagitis custodian.
Strictly speaking, we are faced here with a classic case of hearsay
evidence i.e., evidence whose probative value is not based on the personal
knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself)
but on the knowledge of some other person not on the witness stand (the
informant).[172]
To say that this piece of evidence is incompetent and inadmissible evidence
of what it substantively states is to acknowledge as the petitioners effectively
suggest that in the absence of any direct evidence, we should simply dismiss the
petition. To our mind, an immediate dismissal for this reason is no different from a
statement that the Amparo Rule despite its terms is ineffective, as it cannot allow
for the special evidentiary difficulties that are unavoidably present
in Amparo situations, particularly in extrajudicial killings and enforced
disappearances. The Amparo Rule was not promulgated with this intent or with the
intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from
local and international experiences in extrajudicial killings and enforced
disappearances, as the situation may require. Consequently, we have no choice but
to meet the evidentiary difficulties inherent in enforced disappearances with the
flexibility that these difficulties demand.
To give full meaning to our Constitution and the rights it protects, we hold
that, as in Velasquez, we should at least take a close look at the available evidence
to determine the correct import of every piece of evidence even of those usually
considered inadmissible under the general rules of evidence taking into account the
surrounding circumstances and the test of reason that we can use as basic minimum
admissibility requirement. In the present case, we should at least determine whether
the Kasim evidence before us is relevant and meaningful to the disappearance of
Tagistis and reasonably consistent with other evidence in the case.
The evidence about Tagitis personal circumstances surrounded him with an
air of mystery. He was reputedly a consultant of the World Bank and a Senior
Honorary Counselor for the IDB who attended a seminar in Zamboanga and
thereafter proceded to Jolo for an overnight stay, indicated by his request to
Kunnong for the purchase of a return ticket to Zamboanga the day after he arrived
in Jolo. Nothing in the records indicates the purpose of his overnight sojourn in
Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that
Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli later
on stated that he never accused Tagitis of taking away money held in trust, although
he confirmed that the IDB was seeking assistance in locating funds of IDB scholars
deposited in Tagitis personal account. Other than these pieces of evidence, no other
information exists in the records relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal
circumstances. While the Amparo petition recited that he was taken away by burly
men believed to be police intelligence operatives, no evidence whatsoever was
introduced to support this allegation. Thus, the available direct evidence is that
Tagitis was last seen at 12.30 p.m. of October 30, 2007 the day he arrived in Jolo
and was never seen again.
The Kasim evidence assumes critical materiality given the dearth of direct
evidence on the above aspects of the case, as it supplies the gaps that were never
looked into and clarified by police investigation. It is the evidence, too, that colors
a simple missing person report into an enforced disappearance case, as it injects the
element of participation by agents of the State and thus brings into question how
the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police
informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other
groups fighting the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo police arrived at this
conclusion. The respondents own inquiry in Jolo yielded the answer that he was not
missing but was with another woman somewhere. Again, no evidence exists that
this explanation was arrived at based on an investigation. As already related above,
the inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not useful
for evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that yielded
positive results. Col. Kasims story, however, confirmed only the fact of his
custodial investigation (and, impliedly, his arrest or abduction), without identifying
his abductor/s or the party holding him in custody. The more significant part of Col.
Kasims story is that the abduction came after Tagitis was seen talking with Omar
Patik and a certain Santos of Bulacan, a Balik Islam charged with terrorism. Mrs.
Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu. None of the
police agencies participating in the investigation ever pursued these
leads.Notably, TASK FORCE TAGITIS to which this information was relayed did
not appear to have lifted a finger to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by
the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the
directives he sent to the ARMM Regional Director and the Regional Chief of the
CIDG on Tagitis, and these reports merely reiterated the open-ended initial report
of the disappearance. The CIDG directed a search in all of its divisions with
negative results. These, to the PNP Chief, constituted the exhaustion of all possible
efforts. PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported
negative results after searching all divisions and departments [of the CIDG] for a
person named Engr. Morced N. Tagitis . . . and after a diligent and thorough
research, records show that no such person is being detained in the CIDG or any of
its department or divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and
PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao did no
better in their affidavits-returns, as they essentially reported the results of their
directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA
constituted TASK FORCE TAGITIS, with specific directives on what to do. The
negative results reflected in the Returns on the writ were again replicated during
the three hearings the CA scheduled. Aside from the previously mentioned
retraction that Prof. Matli made to correct his accusation that Tagitis took money
held in trust for students, PS Supt. Ajirim reiterated in his testimony that the CIDG
consistently denied any knowledge or complicity in any abduction and said that
there was no basis to conclude that the CIDG or any police unit had anything to do
with the disappearance of Tagitis; he likewise considered it premature to conclude
that Tagitis simply ran away with the money in his custody. As already noted above,
the TASK FORCE notably did not pursue any investigation about the personal
circumstances of Tagitis, his background in relation to the IDB and the background
and activities of this Bank itself, and the reported sighting of Tagistis with terrorists
and his alleged custody in Talipapao, Sulu. No attempt appears to have ever been
made to look into the alleged IDB funds that Tagitis held in trust, or to tap any of
the assets who are indispensable in investigations of this nature. These omissions
and negative results were aggravated by the CA findings that it was only as late as
January 28, 2008 or three months after the disappearance that the police authorities
requested for clear pictures of Tagitis. Col. Kasim could not attend the trial because
his subpoena was not served, despite the fact that he was designated as Ajirims
replacement in the latters last post. Thus, Col. Kasim was not then questioned. No
investigation even an internal one appeared to have been made to inquire into the
identity of Col. Kasims asset and what he indeed wrote.
We glean from all these pieces of evidence and developments a
consistency in the governments denial of any complicity in the disappearance
of Tagitis, disrupted only by the report made by Col. Kasim to the respondent
at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever
made the disclosure that Tagitis was under custodial investigation for complicity in
terrorism. Another distinctive trait that runs through these developments is the
governments dismissive approach to the disappearance, starting from the initial
response by the Jolo police to Kunnongs initial reports of the disappearance, to the
responses made to the respondent when she herself reported and inquired about her
husbands disappearance, and even at TASK FORCE TAGITIS itself.
As the CA found through TASK FORCE TAGITIS, the investigation was at
best haphazard since the authorities were looking for a man whose picture they
initially did not even secure. The returns and reports made to the CA fared no better,
as the CIDG efforts themselves were confined to searching for custodial records of
Tagitis in their various departments and divisions. To point out the obvious, if the
abduction of Tagitis was a black operation because it was unrecorded or officially
unauthorized, no record of custody would ever appear in the CIDG records; Tagitis,
too, would not be detained in the usual police or CIDG detention places. In sum,
none of the reports on record contains any meaningful results or details on the
depth and extent of the investigation made. To be sure, reports of top police
officials indicating the personnel and units they directed to investigate can never
constitute exhaustive and meaningful investigation, or equal detailed investigative
reports of the activities undertaken to search for Tagitis. Indisputably, the police
authorities from the very beginning failed to come up to the extraordinary diligence
that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasims disclosure,
made in an unguarded moment, unequivocally point to some government
complicity in the disappearance. The consistent but unfounded denials and the
haphazard investigations cannot but point to this conclusion. For why would the
government and its officials engage in their chorus of concealment if the intent had
not been to deny what they already knew of the disappearance? Would not an in-
depth and thorough investigation that at least credibly determined the fate of Tagitis
be a feather in the governments cap under the circumstances of the
disappearance? From this perspective, the evidence and developments, particularly
the Kasim evidence, already establish a concrete case of enforced disappearance
that the Amparo Rule covers. From the prism of the UN Declaration, heretofore
cited and quoted,[173] the evidence at hand and the developments in this case
confirm the fact of the enforced disappearance and government complicity, under
a background of consistent and unfounded government denials and haphazard
handling. The disappearance as well effectively placed Tagitis outside the
protection of the law a situation that will subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without
precedent in international enforced disappearance rulings. While the facts are not
exactly the same, the facts of this case run very close to those of Timurtas v.
Turkey,[174] a case decided by ECHR. The European tribunal in that case acted on
the basis of the photocopy of a post-operation report in finding that Abdulvahap
Timurtas (Abdulvahap) was abducted and later detained by agents (gendarmes) of
the government of Turkey. The victim's father in this case brought a claim against
Turkey for numerous violations of the European Convention, including the right to
life (Article 2) and the rights to liberty and security of a person (Article 5). The
applicant contended that on August 14, 1993, gendarmes apprehended his son,
Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in the Silopi
region. The petition was filed in southeast Turkey nearly six and one half years after
the apprehension. According to the father, gendarmes first detained Abdulvahap
and then transferred him to another detainment facility. Although there was no
eyewitness evidence of the apprehension or subsequent detainment, the
applicant presented evidence corroborating his version of events, including a
photocopy of a post-operation report signed by the commander of gendarme
operations in Silopi, Turkey. The report included a description of Abdulvahap's
arrest and the result of a subsequent interrogation during detention where he was
accused of being a leader of the PKK in the Silopi region. On this basis, Turkey
was held responsible for Abdulvahaps enforced disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine
legal setting and the Amparo remedy this Court has established, as applied to
the unique facts and developments of this case we believe and so hold that the
government in general, through the PNP and the PNP-CIDG, and in
particular, the Chiefs of these organizations together with Col. Kasim, should
be held fully accountable for the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No.
6975, otherwise known as the PNP Law,[175] specifies the PNP as the governmental
officewith the mandate to investigate and prevent crimes, effect the arrest of
criminal offenders, bring offenders to justice and assist in their prosecution. The
PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified,
is the investigative arm of the PNP and is mandated to investigate and prosecute all
cases involving violations of the Revised Penal Code, particularly those considered
as heinous crimes.[176] Under the PNP organizational structure, the PNP-CIDG is
tasked to investigate all major crimes involving violations of the Revised Penal
Code and operates against organized crime groups, unless the President assigns the
case exclusively to the National Bureau of Investigation (NBI).[177] No indication
exists in this case showing that the President ever directly intervened by assigning
the investigation of Tagitis disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were
the ones who were remiss in their duties when the government completely failed to
exercise the extral'>To fully enforce the Amparo remedy, we refer this case back to
the CA for appropriate proceedings directed at the monitoring of the PNP and the
PNP-CIDG investigations and actions, and the validation of their results through
hearings the CA may deem appropriate to conduct. For purposes of these
investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of action
for further investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action.On behalf of this Court, the
CA shall pass upon: the need for the PNP and the PNP-CIDG to make disclosures
of matters known to them as indicated in this Decision and as further CA hearings
may indicate; the petitioners submissions; the sufficiency of their investigative
efforts; and submit to this Court a quarterly report containing its actions and
recommendations, copy furnished the petitioners and the respondent, with the first
report due at the end of the first quarter counted from the finality of this
Decision. The PNP and the PNP-CIDG shall have one (1) full year to undertake
their investigation. The CA shall submit its full report for the consideration of this
Court at the end of the 4th quarter counted from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners petition for
review on certiorari for lack of merit, and AFFIRM the decision of the Court of
Appeals dated March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is
an enforced disappearance covered by the Rule on the Writ
of Amparo;
b. Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the
PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for the
enforced disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of
Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG,
through its Chief, directly responsible for the disclosure of material
facts known to the government and to their offices regarding the
disappearance of Engineer Morced N. Tagitis, and for the conduct of
proper investigations using extraordinary diligence, with the
obligation to show investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and
holding him accountable with the obligation to disclose information
known to him and to his assets in relation with the enforced
disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate
proceedings directed at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of their results; the PNP and
the PNP-CIDG shall initially present to the Court of Appeals a plan of
action for further investigation, periodically reporting their results to
the Court of Appeals for consideration and action;
 g. Requiring the Court of Appeals to submit to this Court a quarterly
report with its recommendations, copy furnished the incumbent PNP
and PNP-CIDG Chiefs as petitioners and the respondent, with the first
report due at the end of the first quarter counted from the finality of
this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake
their investigations; the Court of Appeals shall submit its full report
for the consideration of this Court at the end of the 4th quarter counted
from the finality of this Decision;

These directives and those of the Court of Appeals made pursuant to this
Decision shall be given to, and shall be directly enforceable against, whoever may
be the incumbent Chiefs of the Philippine National Police and its Criminal
Investigation and Detection Group, under pain of contempt from this Court when
the initiatives and efforts at disclosure and investigation constitute less than the
extraordinary diligence that the Rule on the Writ of Amparo and the circumstances
of this case demand. Given the unique nature of Amparo cases and their varying
attendant circumstances, these directives particularly, the referral back to and
monitoring by the CA are specific to this case and are not standard remedies that
can be applied to every Amparo situation.

The dismissal of the Amparo petition with respect to General Alexander

Yano, Commanding General, Philippine Army, and General Ruben Rafael, Chief,
Anti-Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.

SO ORDERED.
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, petitioners, 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 opportunity to directly confront the man who
[1]
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
[2]
having suffered human rights abuses such as arbitrary detention, torture and
rape in the hands of police or military forces during the Marcos regime. The [3]
Alien Tort Act was invoked as basis for the US District Courts 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 behalf and
[4]
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
[5]
rendered a verdict and an award of compensatory and exemplary damages in
favor of the plaintiff class. Then, on 3 February 1995, the US District Court,
presided by Judge Manuel L. Real, rendered a Final Judgment (Final
Judgment) awarding the plaintiff class a total of One Billion Nine Hundred Sixty
Four Million Five Thousand Eight Hundred Fifty Nine Dollars and Ninety Cents
($1,964,005,859.90). The Final Judgment was eventually affirmed by the US
Court of Appeals for the Ninth Circuit, in a decision rendered on 17 December
1996.[6]
On 20 May 1997, the present petitioners filed Complaint with the Regional
Trial Court, City of Makati (Makati RTC) for the enforcement of the Final
Judgment. They alleged that they are members of the plaintiff class in whose
favor the US District Court awarded damages. 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.
On 9 September 1998, respondent Judge Santiago Javier Ranada of the [10]
Makati RTC issued the subject Order dismissing the complaint without
prejudice. Respondent judge opined that contrary to the petitioners
submission, the subject matter of the complaint was indeed capable of
pecuniary estimation, as it involved a judgment rendered by a foreign court
ordering the payment of definite sums of money, allowing for easy
determination of the value of the foreign judgment. On that score, Section 7(a)
of Rule 141 of the Rules of Civil Procedure would find application, and the RTC
estimated the proper amount of filing fees was approximately Four Hundred
Seventy Two Million Pesos, which obviously had not been paid.
Not surprisingly, petitioners filed a Motion for Reconsideration, which
Judge Ranada denied in an Order dated 28 July 1999. From this denial,
petitioners filed a Petition for Certiorariunder 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 petition be granted and a judgment rendered,
[12]
[9]
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
[13]
likewise invokes the principle of comity, and of vested rights.
The Courts 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:
(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
mortgagees claim. In special proceedings involving properties such as for the
[14]

1. Less than P 100,00.00 P 500.00 allowance of wills, the filing fee is again based on the value of the
2. P 100,000.00 or more - P 800.00 property. The aforecited rules evidently have no application to petitioners
[15]

but less than P 150,000.00 complaint.

3. P 150,000.00 or more but - P 1,000.00
less than P 200,000.00 Petitioners rely on Section 7(b), particularly the proviso on actions where
4. P 200,000.00 or more but the value of the subject matter cannot be estimated. The provision reads in
less than P 250,000.00 - P 1,500.00 full:
5. P 250,000.00 or more but
less than P 300,00.00 - P 1,750.00 SEC. 7. Clerk of Regional Trial Court.-
6. P 300,000.00 or more but
(b) For filing
not more than P 400,000.00 - P 2,000.00
7. P 350,000.00 or more but not 1. Actions where the value
more than P400,000.00 - P 2,250.00 of the subject matter
8. For each P 1,000.00 in excess of cannot be estimated --- P 600.00
P 400,000.00 - P 10.00
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
[16]
adjudicated by the US District Court involves any real property of the Marcos
Estate.
Thus, respondent judge was in clear and serious error when he concluded
that the filing fees should be computed on the basis of the schematic table of
Section 7(a), as the action involved pertains to a claim against an estate based
on judgment. What provision, if any, then should apply in determining the filing
fees for an action to enforce a foreign judgment?
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 [18]
expressly recognized in our jurisprudence beginning with Ingenholl v. Walter
E. Olsen & Co. The conditions required by the Philippines for recognition and
[19]
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 procedural rule now outlined in Section 48, Rule 39
[20]
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, the foreign judgment is susceptible
[21]
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,
[22] [23] [24]
the party aggrieved by the foreign judgment is entitled to defend against the
enforcement of such decision in the local forum. It is essential that there should
be an opportunity to challenge the foreign judgment, in order for the court in
this jurisdiction to properly determine its efficacy. [25]
It is clear then that it is usually necessary for an action to be filed in order
to enforce a foreign judgment , even if such judgment has conclusive effect
[26]
as in the case of in rem actions, if only for the purpose of allowing the losing
party an opportunity to challenge the foreign judgment, and in order for the
court to properly determine its efficacy. Consequently, the party attacking a
[27]
foreign judgment has the burden of overcoming the presumption of its
validity.
[28]
The rules are silent as to what initiatory procedure must be undertaken in
order to enforce a foreign judgment in the Philippines. But there is no question
that the filing of a civil complaint is an appropriate measure for such purpose.
A civil action is one by which a party sues another for the enforcement or
protection of a right, 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
[30]
grant of jurisdiction to a quasi-judicial body, the claim for enforcement of
judgment must be brought before the regular courts. [31]
There are distinctions, nuanced but discernible, between the cause of
action arising from the enforcement of a foreign judgment, and that arising from
the facts or allegations that occasioned the foreign judgment. They may pertain
to the same set of facts, but there is an essential difference in the right-duty
correlatives that are sought to be vindicated. For example, in a complaint for
damages against a tortfeasor, the cause of action emanates from the violation
of the right of the complainant through the act or omission of the respondent.
On the other hand, in a complaint for the enforcement of a foreign judgment
awarding damages from the same tortfeasor, for the violation of the same right
through the same manner of action, the cause of action derives not from the
tortious act but from the foreign judgment itself.
More importantly, the matters for proof are different. Using the above
example, the complainant will have to establish before the court the tortious
act or omission committed by the tortfeasor, who in turn is allowed to rebut
these factual allegations or prove extenuating circumstances. Extensive
litigation is thus conducted on the facts, and from there the right to and amount
of damages are assessed. On the other hand, in an action to enforce a foreign
judgment, the matter left for proof is the foreign judgment itself, and not the
facts from which it prescinds.
As stated in Section 48, Rule 39, the actionable issues are generally
restricted to a review of jurisdiction of the foreign court, the service of personal
notice, collusion, fraud, or mistake of fact or law. The limitations on review is
in consonance with a strong and pervasive policy in all legal systems to limit
repetitive litigation on claims and issues. 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 Ferrers Case of 1599
stated to be the goal of all law: rest and quietness. If every judgment of a
[33]
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 complaintthe enforcement of a foreign
judgmentis 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 mortgage, the right to support, validity of
[38] [39] [40]
documents, rescission of contracts, specific performance, and validity or
[41] [42] [43]
annulment of judgments. It is urged that an action for enforcement of a
[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 principles of
[46]
comity, utility and convenience of nations as the basis for the evolution of the
[47]
rule 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
[48]
especially derived from the landmark treatise of 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
[50]
fallacies. Other conceptual bases for the recognition of foreign judgments
[51]
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 rvision au fond. The most ambitious of these attempts is
[53]
the Convention on the Recognition and Enforcement of Foreign Judgments in
Civil and Commercial Matters, prepared in 1966 by the Hague Conference of
International Law. While it has not received the ratifications needed to have
[54]
it take effect, it is recognized as representing current scholarly thought on the
[55]
topic. Neither the Philippines nor the United States are signatories to the
[56]
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
[59]
collusion may preclude the enforcement of a foreign judgment finds affirmation
with foreign jurisprudence and commentators, as well as the doctrine that the
[60]
foreign judgment must not constitute a clear mistake of law or fact. And [61]
finally, it has been recognized that public policy as a defense to the recognition
of judgments serves as an umbrella for a variety of concerns in international
practice which may lead to a denial of recognition. [62]
The viability of the public policy defense against the enforcement of a
foreign judgment has been recognized in this jurisdiction. This defense allows
[63]
for the application of local standards in reviewing the foreign judgment,
especially when such judgment creates only a presumptive right, as it does in
cases wherein the judgment is against a person. The defense is also
[64]
recognized within the international sphere, as many civil law nations adhere to
a broad public policy exception which may result in a denial of recognition
when the foreign court, in the light of the choice-of-law rules of the recognizing
court, applied the wrong law to the case. The public policy defense can
[65]
safeguard against possible abuses to the easy resort to offshore litigation if it
can be demonstrated that the original claim is noxious to our constitutional
values.
There is no obligatory rule derived from treaties or conventions that
requires the Philippines to recognize foreign judgments, or allow a procedure
for the enforcement thereof. However, generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution, form
part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those
[66]
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 demonstrated,
[68]
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
[69]
law obliging states to allow for, however generally, the recognition and
enforcement of a foreign judgment. The bare principle, to our mind, has
attained the status of opinio juris in international practice.
This is a significant proposition, as it acknowledges that the procedure and
requisites outlined in Section 48, Rule 39 derive their efficacy not merely from
the procedural rule, but by virtue of the incorporation clause of the Constitution.
Rules of procedure are promulgated by the Supreme Court, and could very
[70]
well be abrogated or revised by the high court itself. Yet the Supreme Court is
obliged, as are all State components, to obey the laws of the land, including
generally accepted principles of international law which form part thereof, such
as those ensuring the qualified recognition and enforcement of foreign
judgments. [71]
Thus, relative to the enforcement of foreign judgments in the Philippines, it
emerges that there is a general right recognized within our body of laws, and
affirmed by the Constitution, to seek recognition and enforcement of foreign
judgments, as well as a right to defend against such enforcement on the
grounds of want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
The preclusion of an action for enforcement of a foreign judgment in this
country merely due to an exhorbitant assessment of docket fees is alien to
generally accepted practices and principles in international law. Indeed, there
are grave concerns in conditioning the amount of the filing fee on the pecuniary
award or the value of the property subject of the foreign decision. Such
pecuniary award will almost certainly be in foreign denomination, computed in
accordance with the applicable laws and standards of the forum. The [72]
vagaries of inflation, as well as the relative low-income capacity of the Filipino,
to date may very well translate into an award virtually unenforceable in this
country, despite its integral validity, if the docket fees for the enforcement
thereof were predicated on the amount of the award sought to be enforced.
The theory adopted by respondent judge and the Marcos Estate may even
lead to absurdities, such as if applied to an award involving real property
situated in places such as the United States or Scandinavia where real
property values are inexorably high. We cannot very well require that the filing
fee be computed based on the value of the foreign property as determined by
the standards of the country where it is located.
As crafted, Rule 141 of the Rules of Civil Procedure avoids
unreasonableness, as it recognizes that the subject matter of an action for
enforcement of a foreign judgment is the foreign judgment itself, and not the
right-duty correlatives that resulted in the foreign judgment. In this particular
circumstance, given that the complaint is lodged against an estate and is
based on the US District Courts 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
[73]
determination of the case. [74]
One more word. It bears noting that Section 48, Rule 39 acknowledges that
the Final Judgment is not conclusive yet, but presumptive evidence of a right
of the petitioners against the Marcos Estate. Moreover, the Marcos Estate is
not precluded to present evidence, if any, of want of jurisdiction, want of notice
to the party, collusion, fraud, or clear mistake of law or fact. This ruling, decisive
as it is on the question of filing fees and no other, does not render verdict on
the enforceability of the Final Judgment before the courts under the jurisdiction
of the Philippines, or for that matter any other issue which may legitimately be
presented before the trial court. Such issues are to be litigated before the trial
court, but within the confines of the matters for proof as laid down in Section
48, Rule 39. On the other hand, the speedy resolution of this claim by the trial
court is encouraged, and contumacious delay of the decision on the merits will
not be brooked by this Court.
WHEREFORE, the petition is GRANTED. The assailed orders are
NULLIFIED and SET ASIDE, and a new order REINSTATING Civil Case No.
97-1052 is hereby issued. No costs.
SO ORDERED.
G.R. No. 221697 mother discovered only sometime in the second half of 2005 that the lawyer who handled petitioner's
adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's new
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, name and the name of her adoptive parents. 3 Without delay, petitioner's mother executed an affidavit
vs. attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo
COMELEC AND ESTRELLA C. ELAMPARO Respondents. issued a new Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe.4

x-----------------------x Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local
COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's
G.R. No. 221698-700 Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila.5

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 6 by the
vs. Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. her Philippine passport and respectively secured Philippine Passport Nos. L881511 and DD156616.7
VALDEZ Respondents.
Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the
DECISION Philippines8 but she opted to continue her studies abroad and left for the United States of America
(U.S.) in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts
where she earned her Bachelor of Arts degree in Political Studies.9
PEREZ, J.:
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen
Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of
of both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous
Court with extremely urgent application for an ex parte issuance of temporary restraining order/status
of being with her husband who was then based in the U.S., the couple flew back to the U.S. two days
quo ante order and/or writ of preliminary injunction assailing the following: (1) 1 December 2015
after the wedding ceremony or on 29 July 1991. 11
Resolution of the Commission on Elections (COMELEC) Second Division; (2) 23 December 2015
Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution
of the COMELEC First Division; and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April
SPA No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been issued 1992.12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in
without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. the Philippines on 10 July 1998 and 5 June 2004, respectively. 13

The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in
the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968.
Parental care and custody over petitioner was passed on by Edgardo to his relatives, Emiliano Militar
(Emiliano) and his wife. Three days after, 6 September 1968, Emiliano reported and registered
petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her
Foundling Certificate and Certificate of Live Birth, the petitioner was given the name "Mary Grace
Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando
Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the
Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial court granted their petition
and ordered that petitioner's name be changed from "Mary Grace Natividad Contreras Militar" to
"Mary Grace Natividad Sonora Poe." Although necessary notations were made by OCR-Iloilo on
petitioner's foundling certificate reflecting the court decreed adoption,2 the petitioner's adoptive
On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S. Passport
No. 017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her
father's candidacy for President in the May 2004 elections. It was during this time that she gave birth
to her youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon
learning of her father's deteriorating medical condition. 17 Her father slipped into a coma and
eventually expired. The petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his estate. 18
According to the petitioner, the untimely demise of her father was a severe blow to her entire family.
In her earnest desire to be with her grieving mother, the petitioner and her husband decided to move
and reside permanently in the Philippines sometime in the first quarter of 2005.19 The couple began
preparing for their resettlement including notification of their children's schools that they will be
transferring to Philippine schools for the next semester; 20coordination with property movers for the
relocation of their household goods, furniture and cars from the U.S. to the Philippines;21 and inquiry
with Philippine authorities as to the proper procedure to be followed in bringing their pet dog into the
country.22 As early as 2004, the petitioner already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on 24 May 2005 24 and without delay, secured a Tax
Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately
followed25 while her husband was forced to stay in the U.S. to complete pending projects as well as
to arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until she and her husband
purchased a condominium unit with a parking slot at One Wilson Place Condominium in San Juan
City in the second half of 2005.27 The corresponding Condominium Certificates of Title covering the
unit and parking slot were issued by the Register of Deeds of San Juan City to petitioner and her
husband on 20 February 2006.28 Meanwhile, her children of school age began attending Philippine
private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some
of the family's remaining household belongings. 29 She travelled back to the Philippines on 11 March
2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's
change and abandonment of their address in the U.S. 31 The family home was eventually sold on 27
April 2006.32 Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the country
on 4 May 2006 and started working for a major Philippine company in July 2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon
City where they built their family home34 and to this day, is where the couple and their children have
been residing.35 A Transfer Certificate of Title covering said property was issued in the couple's name
by the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003.36 Under
the same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her three minor children on
10 July 2006.37 As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's
petitions and declared that she is deemed to have reacquired her Philippine citizenship while her
children are considered as citizens of the Philippines. 38 Consequently, the BI issued Identification
Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August
2006.40 She also secured from the DFA a new Philippine Passport bearing the No. XX4731999.41 This
passport was renewed on 18 March 2014 and she was issued Philippine Passport No. EC0588861
by the DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie
and Television Review and Classification Board (MTRCB). 43 Before assuming her post, petitioner
executed an "Affidavit of Renunciation of Allegiance to the United States of America and
Renunciation of American Citizenship" before a notary public in Pasig City on 20 October 2010, 44 in
satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225. 45 The following day, 21
October 2010 petitioner submitted the said affidavit to the BI46 and took her oath of office as
Chairperson of the MTRCB.47 From then on, petitioner stopped using her American passport. 48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an
"Oath/Affirmation of Renunciation of Nationality of the United States." 49 On that day, she
accomplished a sworn questionnaire before the U.S. Vice Consul wherein she stated that she had
taken her oath as MTRCB Chairperson on 21 October 2010 with the intent, among others, of
relinquishing her American citizenship.50 In the same questionnaire, the petitioner stated that she had
resided outside of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July 1991
and from May 2005 to present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality
of the United States" effective 21 October 2010. 52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for
Senator for the 2013 Elections wherein she answered "6 years and 6 months" to the question "Period
of residence in the Philippines before May 13, 2013." 53 Petitioner obtained the highest number of
votes and was proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her
COC, the petitioner declared that she is a natural-born citizen and that her residence in the
Philippines up to the day before 9 May 2016 would be ten (10) years and eleven (11) months counted
from 24 May 2005.57 The petitioner attached to her COC an "Affidavit Affirming Renunciation of U.S.A.
Citizenship" subscribed and sworn to before a notary public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several
COMELEC cases against her which were the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to
deny due course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to the
COMELEC Second Division.59She is convinced that the COMELEC has jurisdiction over her
petition.60 Essentially, Elamparo's contention is that petitioner committed material misrepresentation
when she stated in her COC that she is a natural-born Filipino citizen and that she is a resident of
the Philippines for at least ten (10) years and eleven (11) months up to the day before the 9 May
2016 Elections.61
On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born d. she executed a sworn renunciation of her American citizenship prior to the filing of
Filipino on account of the fact that she was a foundling. 62 Elamparo claimed that international law her COC for President in the May 9, 2016 Elections and that the same is in full force
does not confer natural-born status and Filipino citizenship on foundlings.63 Following this line of and effect and has not been withdrawn or recanted;
reasoning, petitioner is not qualified to apply for reacquisition of Filipino citizenship under R.A. No.
9225 for she is not a natural-born Filipino citizen to begin with.64Even assuming arguendo that e. the burden was on Elamparo in proving that she did not possess natural-born
petitioner was a natural-born Filipino, she is deemed to have lost that status when she became a status;
naturalized American citizen.65 According to Elamparo, natural-born citizenship must be continuous
from birth.66 f. residence is a matter of evidence and that she reestablished her domicile in the
Philippines as early as May 24, 2005;
On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn
declaration she made in her 2012 COC for Senator wherein she indicated that she had resided in the g. she could reestablish residence even before she reacquired natural-born
country for only six ( 6) years and six ( 6) months as of May 2013 Elections. Elamparo likewise citizenship under R.A. No. 9225;
insisted that assuming arguendo that petitioner is qualified to regain her natural-born status under
R.A. No. 9225, she still fell short of the ten-year residency requirement of the Constitution as her
h. statement regarding the period of residence in her 2012 COC for Senator was an
residence could only be counted at the earliest from July 2006, when she reacquired Philippine
honest mistake, not binding and should give way to evidence on her true date of
citizenship under the said Act. Also on the assumption that petitioner is qualified to reacquire lost
reacquisition of domicile;
Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her domicile in the
Philippines.67
i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino
people to decide a purely political question, that is, should she serve as the country's
Petitioner seasonably filed her Answer wherein she countered that:
next leader.68
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a
After the parties submitted their respective Memoranda, the petition was deemed submitted for
petition for quo warranto which could only be filed if Grace Poe wins in the Presidential
resolution.
elections, and that the Department of Justice (DOJ) has primary jurisdiction to revoke the BI's
July 18, 2006 Order;
On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that
petitioner's COC, filed for the purpose of running for the President of the Republic of the Philippines
(2) the petition failed to state a cause of action because it did not contain allegations which,
in the 9 May 2016 National and Local Elections, contained material representations which are false.
if hypothetically admitted, would make false the statement in her COC that she is a natural-
The fallo of the aforesaid Resolution reads:
born Filipino citizen nor was there any allegation that there was a willful or deliberate intent
to misrepresent on her part;
WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course
to or Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy
(3) she did not make any material misrepresentation in the COC regarding her citizenship
for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed
and residency qualifications for:
by respondent Mary Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED.69
a. the 1934 Constitutional Convention deliberations show that foundlings were
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the
considered citizens;
COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the same. 70
b. foundlings are presumed under international law to have been born of citizens of
Origin of Petition for Certiorari in G.R. Nos. 221698-700
the place where they are found;
This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P.
c. she reacquired her natural-born Philippine citizenship under the provisions of R.A.
Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which
No. 9225;
were consolidated and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure, 71 docketed
as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship
to qualify her for the Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of
unknown parentage, particularly foundlings, cannot be considered natural-born Filipino citizens since
blood relationship is determinative of natural-born status.73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred that the fact that foundlings were not
expressly included in the categories of citizens in the 193 5 Constitution is indicative of the framers'
intent to exclude them.74 Therefore, the burden lies on petitioner to prove that she is a natural-born
citizen.75
Neither can petitioner seek refuge under international conventions or treaties to support her claim
that foundlings have a nationality.76 According to Tatad, international conventions and treaties are not
self-executory and that local legislations are necessary in order to give effect to treaty obligations
assumed by the Philippines.77 He also stressed that there is no standard state practice that
automatically confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire
Philippine citizenship under R.A. No. 9225 because it only applies to former natural-born citizens and
petitioner was not as she was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10)
year residency requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only
from the time she renounced her American citizenship which was sometime in 2010 or
2011.81 Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as
evinced by the fact that her husband stayed thereat and her frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No.
15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the
status of a natural-born citizen.83 He advanced the view that former natural-born citizens who are
repatriated under the said Act reacquires only their Philippine citizenship and will not revert to their
original status as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator that she had only been a
resident of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013
Elections operates against her. Valdez rejected petitioner's claim that she could have validly
reestablished her domicile in the Philippines prior to her reacquisition of Philippine citizenship. In
effect, his position was that petitioner did not meet the ten (10) year residency requirement for
President.
Unlike the previous COMELEC cases filed against petitioner, Contreras' petition,85 docketed as SPA
No. 15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for
President should be cancelled on the ground that she did not possess the ten-year period of
residency required for said candidacy and that she made false entry in her COC when she stated
that she is a legal resident of the Philippines for ten (10) years and eleven (11) months by 9 May
2016.86 Contreras contended that the reckoning period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date when her petition to reacquire Philippine citizenship
was approved by the BI.87 He asserted that petitioner's physical presence in the country before 18
July 2006 could not be valid evidence of reacquisition of her Philippine domicile since she was then
living here as an American citizen and as such, she was governed by the Philippine immigration
laws.88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition
did not invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68
of the Omnibus Election Code.89 Instead, Tatad completely relied on the alleged lack of residency
and natural-born status of petitioner which are not among the recognized grounds for the
disqualification of a candidate to an elective office.90
Second, the petitions filed against her are basically petitions for quo warranto as they focus on
establishing her ineligibility for the Presidency. 91 A petition for quo warranto falls within the exclusive
jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC. 92
Third, the burden to prove that she is not a natural-born Filipino citizen is on the
respondents.93 Otherwise stated, she has a presumption in her favor that she is a natural-born citizen
of this country.
Fourth, customary international law dictates that foundlings are entitled to a nationality and are
presumed to be citizens of the country where they are found.94 Consequently, the petitioner is
considered as a natural-born citizen of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No.
9225 or the right to reacquire her natural-born status.96 Moreover, the official acts of the Philippine
Government enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the
BI declaring her as natural-born citizen, her appointment as MTRCB Chair and the issuance of the
decree of adoption of San Juan RTC.97 She believed that all these acts reinforced her position that
she is a natural-born citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile
of choice in the Philippines as demonstrated by her children's resettlement and schooling in the
country, purchase of a condominium unit in San Juan City and the construction of their family home
in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even
before she renounced her American citizenship as long as the three determinants for a change of
domicile are complied with.100She reasoned out that there was no requirement that renunciation of
foreign citizenship is a prerequisite for the acquisition of a new domicile of choice. 101
Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was
a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that
petitioner is not a natural-born citizen, that she failed to complete the ten (10) year residency
requirement, and that she committed material misrepresentation in her COC when she declared
therein that she has been a resident of the Philippines for a period of ten (10) years and eleven (11)
months as of the day of the elections on 9 May 2016. The COMELEC First Division concluded that
she is not qualified for the elective position of President of the Republic of the Philippines. The
dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES,
to GRANT the Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's
Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution denying petitioner's
motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of an ex parte temporary restraining order/status quo
ante order and/or writ of preliminary injunction. On 28 December 2015, temporary restraining orders
were issued by the Court enjoining the COMELEC and its representatives from implementing the
assailed COMELEC Resolutions until further orders from the Court. The Court also ordered the
consolidation of the two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter,
oral arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and
SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-
001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1
December 2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11
December 2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions emanated are tainted
with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED
CANDIDATE for President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should be denied due course
or cancelled "on the exclusive ground" that she made in the certificate a false material representation.
The exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from
going into the issue of the qualifications of the candidate for the position, if, as in this case, such issue
is yet undecided or undetermined by the proper authority. The COMELEC cannot itself, in the same
cancellation case, decide the qualification or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C,
Section 2:
Section 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay officials decided by
trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving
elective municipal and barangay offices shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines,
for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible
elections.
(5) Register, after sufficient publication, political parties, organizations, or coalitions
which, in addition to other requirements, must present their platform or program of
government; and accredit citizens' arms of the Commission on Elections. Religious
denominations and sects shall not be registered. Those which seek to achieve their
 goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be
refused registration.
Financial contributions from foreign governments and their agencies to political
parties, organizations, coalitions, or candidates related to elections constitute
interference in national affairs, and, when accepted, shall be an additional ground for
the cancellation of their registration with the Commission, in addition to other
penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases
of violations of election laws, including acts or omissions constituting election frauds,
offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize election spending,
including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidacies.
(8) Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or disregard
of, or disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the conduct
of each election, plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI,
Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns, and qualifications of
their respective Members. Each Electoral Tribunal shall be composed of nine Members, three
of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and
the remaining six shall be Members of the Senate or the House of Representatives, as the
case may be, who shall be chosen on the basis of proportional representation from the
political parties and the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-
President, Senators and the Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on
Elections,104 which was affirmatively cited in the En Banc decision in Fermin v. COMELEC105 is our
guide. The citation in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates,
the COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 § 1, the following:
Grounds for disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a
mere rule. Such an act is equivalent to the creation of a cause of action which is a substantive matter
which the COMELEC, in the exercise of its rule-making power under Art. IX, A, §6 of the Constitution,
cannot do it. It is noteworthy that the Constitution withholds from the COMELEC even the power to
decide cases involving the right to vote, which essentially involves an inquiry into qualifications based
on age, residence and citizenship of voters. [Art. IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but also in
their consequences are proceedings for "disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in §
12 and §68 of the Omnibus Election Code and in §40 of the Local Government Code and are for the
purpose of barring an individual from becoming a candidate or from continuing as a candidate for
public office. In a word, their purpose is to eliminate a candidate from the race either from the start
or during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications
prescribed in the Constitution or the statutes for holding public office and the purpose of the
proceedings for declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that
he is not disqualified from becoming a candidate or continuing as a candidate for a public office and
vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien
has the qualifications prescribed in §2 of the Law does not imply that he does not suffer from any of
[the] disqualifications provided in §4.
Before we get derailed by the distinction as to grounds and the consequences of the respective
proceedings, the importance of the opinion is in its statement that "the lack of provision for declaring
the ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza lectured
in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized proceeding for
determining before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast, whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of
prohibited acts) is a prejudicial question which should be determined lest he wins because of the very
acts for which his disqualification is being sought. That is why it is provided that if the grounds for
disqualification are established, a candidate will not be voted for; if he has been voted for, the votes
in his favor will not be counted; and if for some reason he has been voted for and he has won, either
he will not be proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this
case, his domicile, may take a long time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending in the COMELEC even
after the elections of May 8, 1995. This is contrary to the summary character proceedings relating to
certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the position which they seek to fill, leaving the
determination of their qualifications to be made after the election and only in the event they are
elected. Only in cases involving charges of false representations made in certificates of candidacy is
the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for President,
Vice President, Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The
purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal and the
other Tribunals as "sole judges" under the Constitution of the election, returns and qualifications of
members of Congress of the President and Vice President, as the case may be.106
To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to
the amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This,
the 15 February1993 version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from continuing as a candidate. 107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision
of a competent court, guilty of, or found by the Commission to be suffering from any disqualification
provided by law or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate
of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof,
shall be summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized
proceeding for determining before election the qualifications of candidate. Such that, as presently
required, to disqualify a candidate there must be a declaration by a final judgment of a competent
court that the candidate sought to be disqualified "is guilty of or found by the Commission to be
suffering from any disqualification provided by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to
the other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for the
COMELEC to determine the qualification of a candidate. The facts of qualification must beforehand
be established in a prior proceeding before an authority properly vested with jurisdiction. The prior
determination of qualification may be by statute, by executive order or by a judgment of a competent
court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is suffering from a
disqualification "provided by law or the Constitution," neither can the certificate of candidacy be
cancelled or denied due course on grounds of false representations regarding his or her
qualifications, without a prior authoritative finding that he or she is not qualified, such prior authority
being the necessary measure by which the falsity of the representation can be found. The only
exception that can be conceded are self-evident facts of unquestioned or unquestionable veracity
and judicial confessions. Such are, anyway, bases equivalent to prior decisions against which the
falsity of representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals
with, as in this case, alleged false representations regarding the candidate's citizenship and
residence, forced the COMELEC to rule essentially that since foundlings108 are not mentioned in the
enumeration of citizens under the 1935 Constitution, 109 they then cannot be citizens. As the
COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said it all.
This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot
rule that herein petitioner possesses blood relationship with a Filipino citizen when "it is certain that
such relationship is indemonstrable," proceeded to say that "she now has the burden to present
evidence to prove her natural filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither unknown nor
unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity
and Filiation.110 That said, there is more than sufficient evider1ce that petitioner has Filipino parents
and is therefore a natural-born Filipino. Parenthetically, the burden of proof was on private
respondents to show that petitioner is not a Filipino citizen. The private respondents should have
shown that both of petitioner's parents were aliens. Her admission that she is a foundling did not shift
the burden to her because such status did not exclude the possibility that her parents were Filipinos,
especially as in this case where there is a high probability, if not certainty, that her parents are
Filipinos.
The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether
such parents are Filipinos. Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to
induce belief in its existence or no-existence. Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability of improbability of the fact
in issue.
The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) 111 that
from 1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the total
number of Filipinos born in the country was 10,558,278. The statistical probability that any child born
in the Philippines in that decade is natural-born Filipino was 99.83%. For her part, petitioner
presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there
were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the population were Filipinos.
In 1970, the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were
figures for the child producing ages (15-49). In 1960, there were 230,528 female Filipinos as against
730 female foreigners or 99.68%. In the same year, there were 210,349 Filipino males and 886 male
aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female aliens,
or 99.56%. That same year, there were 245,740 Filipino males as against only 1,165 male aliens
or 99.53%. COMELEC did not dispute these figures. Notably, Commissioner Arthur Lim admitted,
during the oral arguments, that at the time petitioner was found in 1968, the majority of the population
in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was
abandoned as an infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino
1âwphi1
features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according to the ordinary course of
nature and the ordinary habits of life.113 All of the foregoing evidence, that a person with typical Filipino
features is abandoned in Catholic Church in a municipality where the population of the Philippines is
overwhelmingly Filipinos such that there would be more than a 99% chance that a child born in the
province would be a Filipino, would indicate more than ample probability if not statistical certainty,
that petitioner's parents are Filipinos. That probability and the evidence on which it is based are
admissible under Rule 128, Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words
of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the Philippines so they
can get pregnant and leave their newborn babies behind. We do not face a situation where the
probability is such that every foundling would have a 50% chance of being a Filipino and a 50%
chance of being a foreigner. We need to frame our questions properly. What are the chances that
the parents of anyone born in the Philippines would be foreigners? Almost zero. What are the
chances that the parents of anyone born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were
1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301 children in the
Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino children to natural
born Filipino children is 1:1357. This means that the statistical probability that any child born in the
Philippines would be a natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total
number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino
children is 1:661. This means that the statistical probability that any child born in the Philippines on
that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident
that the statistical probability that a child born in the Philippines would be a natural born Filipino will
not be affected by whether or not the parents are known. If at all, the likelihood that a foundling would
have a Filipino parent might even be higher than 99.9%. Filipinos abandon their children out of
poverty or perhaps, shame. We do not imagine foreigners abandoning their children here in the
Philippines thinking those infants would have better economic opportunities or believing that this
country is a tropical paradise suitable for raising abandoned children. I certainly doubt whether a
foreign couple has ever considered their child excess baggage that is best left behind.
To deny full Filipino citizenship to all foundlings and render them stateless just because there may
be a theoretical chance that one among the thousands of these foundlings might be the child of not
just one, but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make
any sense. Given the statistical certainty - 99.9% - that any child born in the Philippines would be a
natural born citizen, a decision denying foundlings such status is effectively a denial of their birthright.
There is no reason why this Honorable Court should use an improbable hypothetical to sacrifice the
fundamental political rights of an entire class of human beings. Your Honor, constitutional
interpretation and the use of common sense are not separate disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's
enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude
foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings,
there is a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal
Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in constitutional construction is to
 ascertain and thereafter assure the realization of the purpose of the framers and of the people Sr. Rafols:
in the adoption of the Constitution. It may also be safely assumed that the people in ratifying The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not
the Constitution were guided mainly by the explanation offered by the framers. 115 unknown.

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 President:
Constitutional Convention show that the framers intended foundlings to be covered by the Does the gentleman accept the amendment or not?
enumeration. The following exchange is recorded:
Sr. Rafols:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The I do not accept the amendment because the amendment would exclude the children of a Filipina with
natural children of a foreign father and a Filipino mother not recognized by the father. a foreigner who does not recognize the child. Their parentage is not unknown and I think those of
overseas Filipino mother and father [whom the latter] does not recognize, should also be considered
xxxx as Filipinos.

President: President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman refers The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr.
to natural children or to any kind of illegitimate children? Briones.

Sr. Rafols: Sr. Busion:

To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or
illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino,
that is, I refer to the Spanish Code wherein all children of unknown parentage born in Spanish territory
are considered Spaniards, because the presumption is that a child of unknown parentage is the son
of a Spaniard. This may be applied in the Philippines in that a child of unknown parentage born in
the Philippines is deemed to be Filipino, and there is no need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the constitution
need [not] refer to them. By international law the principle that children or people born in a country of
unknown parents are citizens in this nation is recognized, and it is not necessary to include a provision
on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there was any objection to
the notion that persons of "unknown parentage" are not citizens but only because their number was
not enough to merit specific mention. Such was the account, 117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:

Sr. Montinola: During the debates on this provision, Delegate Rafols presented an amendment to include
But that is the interpretation of the law, therefore, there is no [more] need for amendment. as Filipino citizens the illegitimate children with a foreign father of a mother who was a citizen
of the Philippines, and also foundlings; but this amendment was defeated primarily because
Sr. Rafols: the Convention believed that the cases, being too few to warrant the inclusion of a provision
The amendment should read thus: in the Constitution to apply to them, should be governed by statutory legislation. Moreover, it
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of was believed that the rules of international law were already clear to the effect that illegitimate
unknown parentage." children followed the citizenship of the mother, and that foundlings followed the nationality of
the place where they were found, thereby making unnecessary the inclusion in the
Constitution of the proposed amendment.
Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.
This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral
Arguments:
We all know that the Rafols proposal was rejected. But note that what was declined was the proposal
for a textual and explicit recognition of foundlings as Filipinos. And so, the way to explain the
constitutional silence is by saying that it was the view of Montinola and Roxas which prevailed that
there is no more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a
constitution can constitutionalize rules based on assumptions that are imperfect or even wrong. They
can even overturn existing rules. This is basic. What matters here is that Montinola and Roxas were
able to convince their colleagues in the convention that there is no more need to expressly declare
foundlings as Filipinos because they are already impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the
avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos
under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the 1973
and 1987 Constitution. It is appropriate to invoke a famous scholar as he was paraphrased by Chief
Justice Fernando: the constitution is not silently silent, it is silently vocal. 118
The Solicitor General makes the further point that the framers "worked to create a just and humane
society," that "they were reasonable patriots and that it would be unfair to impute upon them a
discriminatory intent against foundlings." He exhorts that, given the grave implications of the
argument that foundlings are not natural-born Filipinos, the Court must search the records of the
1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the status of Filipinos.
The burden is on those who wish to use the constitution to discriminate against foundlings to show
that the constitution really intended to take this path to the dark side and inflict this across the board
marginalization."
We find no such intent or language permitting discrimination against foundlings. On the contrary, all
three Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to
render social justice. Of special consideration are several provisions in the present charter: Article II,
Section 11 which provides that the "State values the dignity of every human person and guarantees
full respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest priority
to the enactment of measures that protect and enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities x x x" and Article XV, Section 3 which requires the
State to defend the "right of children to assistance, including proper care and nutrition, and special
protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to
their development." Certainly, these provisions contradict an intent to discriminate against foundlings
on account of their unfortunate status.
Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino
in the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which
provides that "[l]aws relating to family rights, duties, status, conditions, legal capacity of persons are
binding on citizens of the Philippines even though living abroad." Adoption deals with status, and a
Philippine adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v.
Republic,119 a child left by an unidentified mother was sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in rem, which no court may entertain
unless it has jurisdiction, not only over the subject matter of the case and over the parties, but also
over the res, which is the personal status of Baby Rose as well as that of petitioners herein. Our Civil
Code (Art. 15) adheres to the theory that jurisdiction over the status of a natural person is determined
by the latter's nationality. Pursuant to this theory, we have jurisdiction over the status of Baby Rose,
she being a citizen of the Philippines, but not over the status of the petitioners, who are
foreigners.120 (Underlining supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the
Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the "Inter-
Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies
on the Adoption of Filipino Children and For Other Purposes" (otherwise known as the Domestic
Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly
refer to "Filipino children" and include foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling leading to the issuance
of a foundling certificate under these laws and the issuance of said certificate are acts to acquire or
perfect Philippine citizenship which make the foundling a naturalized Filipino at best. This is
erroneous. Under Article IV, Section 2 "Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect their Philippine
citizenship." In the first place, "having to perform an act" means that the act must be personally done
by the citizen. In this instance, the determination of foundling status is done not by the child but by
the authorities.121 Secondly, the object of the process is the determination of the whereabouts of the
parents, not the citizenship of the child. Lastly, the process is certainly not analogous to naturalization
proceedings to acquire Philippine citizenship, or the election of such citizenship by one born of an
alien father and a Filipino mother under the 1935 Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as
evidenced by a Foundling Certificate issued in her favor. 122 The Decree of Adoption issued on 13 May
1974, which approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe,
expressly refers to Emiliano and his wife, Rosario Militar, as her "foundling parents," hence effectively
affirming petitioner's status as a foundling.123
Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international
law can become part of the sphere of domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed into a domestic law through
a constitutional mechanism such as local legislation.124 On the other hand, 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. Generally accepted principles
of international law include international custom as evidence of a general practice accepted as law,
and general principles of law recognized by civilized nations.125 International customary rules are
accepted as binding as a 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 opinionjuris
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. 126 "General
principles of law recognized by civilized nations" are principles "established by a process of
reasoning" or judicial logic, based on principles which are "basic to legal systems generally," 127 such
as "general principles of equity, i.e., the general principles of fairness and justice," and the "general
principle against discrimination" which is embodied in the "Universal Declaration of Human Rights,
the International Covenant on Economic, Social and Cultural Rights, the International Convention on
the Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in
Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and
Occupation."128 These are the same core principles which underlie the Philippine Constitution itself,
as embodied in the due process and equal protection clauses of the Bill of Rights. 129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the
generally accepted principles of international law and binding on the State. 130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of
the UNCRC imposes the following obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name,
the right to acquire a nationality and as far as possible, the right to know and be cared for by his or
her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law
and their obligations under the relevant international instruments in this field, in particular where the
child would otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights
(ICCPR). Article 24 thereof provide for the right of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, the right, to such measures of protection as are required
by his status as a minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant
nationality from birth and ensure that no child is stateless. This grant of nationality must be at the
time of birth, and it cannot be accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which require the applicant to
be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the Philippines, are generally
accepted principles of international law. The first is Article 14 of the 1930 Hague Convention on
Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is presumed
to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the country of birth. If the child's
parentage is established, its nationality shall be determined by the rules applicable in cases where
the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory of the State
in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the country where he is
found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of
Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary,
be considered to have been born within the territory of parents possessing the nationality of that
State.
That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the
Reduction of Statelessness does not mean that their principles are not binding. While the Philippines
is not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human
Rights, Article 15(1) ofwhich131effectively affirms Article 14 of the 1930 Hague Convention. Article 2
of the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives effect" to
Article 15(1) of the UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not
signed or ratified the "International Convention for the Protection of All Persons from Enforced
Disappearance." Yet, we ruled that the proscription against enforced disappearances in the said
convention was nonetheless binding as a "generally accepted principle of international law." Razon
v. Tagitis is likewise notable for declaring the ban as a generally accepted principle of international
law although the convention had been ratified by only sixteen states and had not even come into
force and which needed the ratification of a minimum of twenty states. Additionally, as petitioner
points out, the Court was content with the practice of international and regional state organs, regional
state practice in Latin America, and State Practice in the United States.
Another case where the number of ratifying countries was not determinative is Mijares v.
Ranada, 134 where only four countries had "either ratified or acceded to"135 the 1966 "Convention on
the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters" when the
case was decided in 2005. The Court also pointed out that that nine member countries of the
European Common Market had acceded to the Judgments Convention. The Court also cited U.S.
laws and jurisprudence on recognition of foreign judgments. In all, only the practices of fourteen
countries were considered and yet, there was pronouncement that recognition of foreign judgments
was widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted
principles of international law" are based not only on international custom, but also on "general
principles of law recognized by civilized nations," as the phrase is understood in Article 38.1
paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against discrimination, which
are fundamental principles underlying the Bill of Rights and which are "basic to legal systems
generally,"136 support the notion that the right against enforced disappearances and the recognition
of foreign judgments, were correctly considered as "generally accepted principles of international
law" under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and
Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those countries
follow the jus sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention
on Statelessness; twenty-six (26) are not signatories to the Convention. Also, the Chief Justice, at
the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries surveyed (or
87.83%), foundlings are recognized as citizens. These circumstances, including the practice of jus
sanguinis countries, show that it is a generally accepted principle of international law to presume
foundlings as having been born of nationals of the country in which the foundling is found.
Current legislation reveals the adherence of the Philippines to this generally accepted principle of
international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption,
expressly refer to "Filipino children." In all of them, foundlings are among the Filipino children who
could be adopted. Likewise, it has been pointed that the DFA issues passports to foundlings.
Passports are by law, issued only to citizens. This shows that even the executive department, acting
through the DFA, considers foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our
Constitution. The presumption of natural-born citizenship of foundlings stems from the presumption
that their parents are nationals of the Philippines. As the empirical data provided by the PSA show,
that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter of nationality of
foundlings were designed to address the plight of a defenseless class which suffers from a misfortune
not of their own making. We cannot be restrictive as to their application if we are a country which
calls itself civilized and a member of the community of nations. The Solicitor General's warning in his
opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that those treaties and
conventions were drafted because the world community is concerned that the situation of foundlings
renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift foundlings a tool to deny them political
status or to accord them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A. No.
9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that
since the applicant must perform an act, what is reacquired is not "natural-born" citizenship but only
plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation
statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:
Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized
Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On
the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he
will be restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They
include Sobejana-Condon v. COMELEC141 where we described it as an "abbreviated repatriation
process that restores one's Filipino citizenship x x x." Also included is Parreno v. Commission on
Audit,142 which cited Tabasa v. Court of Appeals,143where we said that "[t]he repatriation of the former
Filipino will allow him to recover his natural-born citizenship. Parreno v. Commission on Audit144 is
categorical that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will
... recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that
natural-born citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A.
No. 9225 was obviously passed in line with Congress' sole prerogative to determine how citizenship
may be lost or reacquired. Congress saw it fit to decree that natural-born citizenship may be
reacquired even if it had been once lost. It is not for the COMELEC to disagree with the Congress'
determination.
More importantly, COMELEC's position that natural-born status must be continuous was already
rejected in Bengson III v. HRET145 where the phrase "from birth" was clarified to mean at the time of
birth: "A person who at the time of his birth, is a citizen of a particular country, is a natural-born citizen
thereof." Neither is "repatriation" an act to "acquire or perfect" one's citizenship. In Bengson III v.
HRET, this Court pointed out that there are only two types of citizens under the 1987 Constitution:
natural-born citizen and naturalized, and that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present Constitution that there are
only two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a natural-born Filipino.
Noteworthy is the absence in said enumeration of a separate category for persons who, after losing
Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons for the loss of their
citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent
Cruz was not required by law to go through naturalization proceedings in order to reacquire his
citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of Representatives. 146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may
always revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied.
In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be prospective in application for the reason that
judicial decisions applying or interpreting the laws of the Constitution, until reversed, shall form part
of the legal system of the Philippines." This Court also said that "while the future may ultimately
uncover a doctrine's error, it should be, as a general rule, recognized as good law prior to its
abandonment. Consequently, the people's reliance thereupon should be respected." 148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood
when she put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the
names of her adoptive parents, and this misled the BI to presume that she was a natural-born Filipino.
It has been contended that the data required were the names of her biological parents which are
precisely unknown.
This position disregards one important fact - petitioner was legally adopted. One of the effects of
adoption is "to sever all legal ties between the biological parents and the adoptee, except when the
biological parent is the spouse of the adoptee."149 Under R.A. No. 8552, petitioner was also entitled
to an amended birth certificate "attesting to the fact that the adoptee is the child of the adopter(s)"
and which certificate "shall not bear any notation that it is an amended issue."150 That law also requires
that "[a]ll records, books, and papers relating to the adoption cases in the files of the court, the
Department [of Social Welfare and Development], or any other agency or institution participating in
the adoption proceedings shall be kept strictly confidential." 151 The law therefore allows petitioner to
state that her adoptive parents were her birth parents as that was what would be stated in her birth
certificate anyway. And given the policy of strict confidentiality of adoption records, petitioner was not
obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same
case for cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The
whole process undertaken by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not petitioner committed
false material representation when she stated in her COC that she has before and until 9 May 2016
been a resident of the Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the
day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines
before the day of the elections. Since the forthcoming elections will be held on 9 May 2016, petitioner
must have been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to the
requested information of "Period of Residence in the Philippines up to the day before May 09, 2016,"
she put in "10 years 11 months" which according to her pleadings in these cases corresponds to a
beginning date of 25 May 2005 when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines.
There are three requisites to acquire a new domicile: 1. Residence or bodily presence in a new
locality; 2. an intention to remain there; and 3. an intention to abandon the old domicile.152 To
successfully effect a change of domicile, one must demonstrate an actual removal or an actual
change of domicile; a bona fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with the purpose. In other words, there
must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or
at the domicile of choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be actual. 153
Petitioner presented voluminous evidence showing that she and her family abandoned their U.S.
domicile and relocated to the Philippines for good. These evidence include petitioner's former U.S.
passport showing her arrival on 24 May 2005 and her return to the Philippines every time she
travelled abroad; e-mail correspondences starting in March 2005 to September 2006 with a freight
company to arrange for the shipment of their household items weighing about 28,000 pounds to the
Philippines; e-mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to the
Philippines; school records of her children showing enrollment in Philippine schools starting June
2005 and for succeeding years; tax identification card for petitioner issued on July 2005; titles for
condominium and parking slot issued in February 2006 and their corresponding tax declarations
issued in April 2006; receipts dated 23 February 2005 from the Salvation Army in the U.S.
acknowledging donation of items from petitioner's family; March 2006 e-mail to the U.S. Postal
Service confirming request for change of address; final statement from the First American Title
Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up
questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of
petitioner on 24 May 2005 and that she and her family stayed with affiant until the condominium was
purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly decided to
relocate to the Philippines in 2005 and that he stayed behind in the U.S. only to finish some work and
to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by the COMELEC,
particularly in its Resolution in the Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had been timely changed as
of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the presence
of the first two requisites, namely, physical presence and animus manendi, but maintained there was
no animus non-revertendi.154 The COMELEC disregarded the import of all the evidence presented by
petitioner on the basis of the position that the earliest date that petitioner could have started residence
in the Philippines was in July 2006 when her application under R.A. No. 9225 was approved by the
BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon
COMELEC and Caballero v. COMELEC. During the oral arguments, the private respondents
156 157
also added Reyes v. COMELEC.158 Respondents contend that these cases decree that the stay of an
alien former Filipino cannot be counted until he/she obtains a permanent resident visa or reacquires
Philippine citizenship, a visa-free entry under a balikbayan stamp being insufficient. Since petitioner
was still an American (without any resident visa) until her reacquisition of citizenship under R.A. No.
9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very different from her situation.
In Coquilla v. COMELEC,159 the only evidence presented was a community tax certificate secured by
the candidate and his declaration that he would be running in the elections. Japzon v.
COMELEC160 did not involve a candidate who wanted to count residence prior to his reacquisition of
Philippine citizenship. With the Court decreeing that residence is distinct from citizenship, the issue
there was whether the candidate's acts after reacquisition sufficed to establish residence.
In Caballero v. COMELEC, 161 the candidate admitted that his place of work was abroad and that he
only visited during his frequent vacations. In Reyes v. COMELEC,162 the candidate was found to be
an American citizen who had not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only
proof she offered was a seven-month stint as provincial officer. The COMELEC, quoted with approval
by this Court, said that "such fact alone is not sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four cases cited by the
respondents, the Court had no choice but to hold that residence could be counted only from
acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In contrast,
the evidence of petitioner is overwhelming and taken together leads to no other conclusion that she
decided to permanently abandon her U.S. residence (selling the house, taking the children from U.S.
schools, getting quotes from the freight company, notifying the U.S. Post Office of the abandonment
of their address in the U.S., donating excess items to the Salvation Army, her husband resigning from
U.S. employment right after selling the U.S. house) and permanently relocate to the Philippines and
actually re-established her residence here on 24 May 2005 (securing T.I.N, enrolling her children in
Philippine schools, buying property here, constructing a residence here, returning to the Philippines
after all trips abroad, her husband getting employed here). Indeed, coupled with her eventual
application to reacquire Philippine citizenship and her family's actual continuous stay in the
Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had entered the Philippines
visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An
Act Instituting a Balikbayan Program," shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one year. Included in the law is a former Filipino who has
been naturalized abroad and "comes or returns to the Philippines." 163 The law institutes
a balikbayan program "providing the opportunity to avail of the necessary training to enable
the balikbayan to become economically self-reliant members of society upon their return to the
country"164in line with the government's "reintegration program." 165 Obviously, balikbayans are not
ordinary transients.
v.
Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into
society, it would be an unduly harsh conclusion to say in absolute terms that the balikbayan must
leave after one year. That visa-free period is obviously granted him to allow him to re-establish his
life and reintegrate himself into the community before he attends to the necessary formal and legal
requirements of repatriation. And that is exactly what petitioner did - she reestablished life here by
enrolling her children and buying property while awaiting the return of her husband and then applying
for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive
and overwhelming, has as yet been decided by the Court. Petitioner's evidence of residence is
unprecedented. There is no judicial precedent that comes close to the facts of residence of petitioner.
There is no indication in Coquilla v. COMELEC,166 and the other cases cited by the respondents that
the Court intended to have its rulings there apply to a situation where the facts are different. Surely,
the issue of residence has been decided particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC
ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in
her 2015 COC was false because she put six ( 6) years and six ( 6) months as "period of residence
before May 13, 2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she started
being a Philippine resident only in November 2006. In doing so, the COMELEC automatically
assumed as true the statement in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013
COC as the period of residence as of the day she submitted that COC in 2012. She said that she
reckoned residency from April-May 2006 which was the period when the U.S. house was sold and
her husband returned to the Philippines. In that regard, she was advised by her lawyers in 2015 that
residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May
2013) as inquiring about residence as of the time she submitted the COC, is bolstered by the change
which the COMELEC itself introduced in the 2015 COC which is now "period of residence in the
Philippines up to the day before May 09, 2016." The COMELEC would not have revised the query if
it did not acknowledge that the first version was vague.
That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house
and the return of her husband is plausible given the evidence that she had returned a year before.
Such evidence, to repeat, would include her passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive
admission against petitioner. It could be given in evidence against her, yes, but it was by no means
conclusive. There is precedent after all where a candidate's mistake as to period of residence made
in a COC was overcome by evidence. In Romualdez-Marcos v. COMELEC,167 the candidate
mistakenly put seven (7) months as her period of residence where the required period was a minimum
of one year. We said that "[i]t is the fact of residence, not a statement in a certificate of candidacy
which ought to be decisive in determining whether or not an individual has satisfied the constitutions
residency qualification requirement." The COMELEC ought to have looked at the evidence presented
and see if petitioner was telling the truth that she was in the Philippines from 24 May 2005. Had the
COMELEC done its duty, it would have seen that the 2012 COC and the 2015 COC both correctly
stated the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner actually and
physically returned here on 24 May 2005 not because it was false, but only because COMELEC took
the position that domicile could be established only from petitioner's repatriation under R.A. No. 9225
in July 2006. However, it does not take away the fact that in reality, petitioner had returned from the
U.S. and was here to stay permanently, on 24 May 2005. When she claimed to have been a resident
for ten (10) years and eleven (11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything. As already stated, a
petition for quo warranto had been filed against her with the SET as early as August 2015. The event
from which the COMELEC pegged the commencement of residence, petitioner's repatriation in July
2006 under R.A. No. 9225, was an established fact to repeat, for purposes of her senatorial
candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner
recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the
United Nationalist Alliance. Petitioner appears to have answered the issue immediately, also in the
press. Respondents have not disputed petitioner's evidence on this point. From that time therefore
when Rep. Tiangco discussed it in the media, the stated period of residence in the 2012 COC and
the circumstances that surrounded the statement were already matters of public record and were not
hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo
warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that she made a
mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she misunderstood
the question and could have truthfully indicated a longer period. Her answer in the SET case was a
matter of public record. Therefore, when petitioner accomplished her COC for President on 15
October 2015, she could not be said to have been attempting to hide her erroneous statement in her
2012 COC for Senator which was expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012
statement and have it covered by the 2015 representation. Petitioner, moreover, has on her side this
Court's pronouncement that:
Concededly, a candidate's disqualification to run for public office does not necessarily constitute
material misrepresentation which is the sole ground for denying due course to, and for the
cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation in his COC
must not only refer to a material fact (eligibility and qualifications for elective office), but should evince
a deliberate intent to mislead, misinform or hide a fact which would otherwise render a candidate
ineligible. It must be made with an intention to deceive the electorate as to one's qualifications to run
for public office.168
In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of
evidenced dates all of which can evince animus manendi to the Philippines and animus non
revertedi to the United States of America. The veracity of the events of coming and staying home
was as much as dismissed as inconsequential, the focus having been fixed at the petitioner's "sworn
declaration in her COC for Senator" which the COMELEC said "amounts to a declaration and
therefore an admission that her residence in the Philippines only commence sometime in November
2006"; such that "based on this declaration, [petitioner] fails to meet the residency requirement for
President." This conclusion, as already shown, ignores the standing jurisprudence that it is the fact
of residence, not the statement of the person that determines residence for purposes of compliance
with the constitutional requirement of residency for election as President. It ignores the easily
researched matter that cases on questions of residency have been decided favorably for the
candidate on the basis of facts of residence far less in number, weight and substance than that
presented by petitioner.169 It ignores, above all else, what we consider as a primary reason why
petitioner cannot be bound by her declaration in her COC for Senator which declaration was not even
considered by the SET as an issue against her eligibility for Senator. When petitioner made the
declaration in her COC for Senator that she has been a resident for a period of six (6) years and six
(6) months counted up to the 13 May 2013 Elections, she naturally had as reference the residency
requirements for election as Senator which was satisfied by her declared years of residence. It was
uncontested during the oral arguments before us that at the time the declaration for Senator was
made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and that the
general public was never made aware by petitioner, by word or action, that she would run for
President in 2016. Presidential candidacy has a length-of-residence different from that of a senatorial
candidacy. There are facts of residence other than that which was mentioned in the COC for Senator.
Such other facts of residence have never been proven to be false, and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the
USA to finish pending projects and arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled
Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in Makati City in
2005. Anika was enrolled in Learning Connection in San Juan in 2007, when she was already old
enough to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place
Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of their
family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who
handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo
a new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents are
"Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of
the family's remaining household belongings. [Petitioner] returned to the Philippines on 11 March
1a\^/phi1
2006.
Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs.
Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC)
entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
GRANT the petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES for the elective position of President of the Republic of the
Philippines in connection with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution
of the Second Division stating that:

In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to
abandonment of their address in the US. DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is
The family home in the US was sole on 27 April 2006. AFFIRMED.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines 4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution
on 4 May 2006 and began working for a Philippine company in July 2006. of the First Division.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-
eventually built their family home.170 LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and
Local Elections of 9 May 2016.
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under
the exclusive ground of false representation, to consider no other date than that mentioned by SO ORDERED.
petitioner in her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as
President of the Republic, the questioned Resolutions of the COMELEC in Division and En Banc are,
one and all, deadly diseased with grave abuse of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001
(DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent, stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016
National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is
hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated
cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora
NG LADLAD LGBT PARTY G.R. No. 190582 Justice Robert A. Jackson
represented herein by its Chair, West Virginia State Board of Education v. Barnette[1]
DANTON REMOTO,
Petitioner, Present:
One unavoidable consequence of everyone having the freedom to choose is that others
PUNO, C. J., may make different choices choices we would not make for ourselves, choices we may
CARPIO, disapprove of, even choices that may shock or offend or anger us. However, choices are
CORONA, not to be legally prohibited merely because they are different, and the right to disagree
CARPIO MORALES, and debate about important questions of public policy is a core value protected by our Bill
VELASCO, JR., of Rights. Indeed, our democracy is built on genuine recognition of, and respect for,
NACHURA, diversity and difference in opinion.
LEONARDO-DE CASTRO, Since ancient times, society has grappled with deep disagreements about the
- versus - BRION,
definitions and demands of morality. In many cases, where moral convictions are
PERALTA,
BERSAMIN, concerned, harmony among those theoretically opposed is an insurmountable goal. Yet
DEL CASTILLO, herein lies the paradox philosophical justifications about what is moral are indispensable
ABAD, and yet at the same time powerless to create agreement. This Court recognizes,
VILLARAMA, JR., however, that practical solutions are preferable to ideological stalemates; accommodation
PEREZ, and is better than intransigence; reason more worthy than rhetoric. This will allow persons of
MENDOZA, JJ. diverse viewpoints to live together, if not harmoniously, then, at least, civilly.

COMMISSION ON ELECTIONS, Promulgated: Factual Background

Respondent. April 8, 2010
x--------------------------------------------------------x
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT
DECISION Party (Ang Ladlad) against the Resolutions of the Commission on Elections
(COMELEC) dated November 11, 2009[2] (the First Assailed Resolution) and December
DEL CASTILLO, J.: 16, 2009[3] (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the
Assailed Resolutions). The case has its roots in the COMELECs refusal to accredit Ang
... [F]reedom to differ is not limited to things that do not matter much. That Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known
would be a mere shadow of freedom. The test of its substance is the right to as the Party-List System Act.[4]
differ as to things that touch the heart of the existing order.
 Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in
2006. The application for accreditation was denied on the ground that the organization
had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a
Petition[5] for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged because of
their sexual orientation and gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-
point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections.[6] Ang Ladlad laid out its national membership base consisting
of individual members and organizational supporters, and outlined its platform of
governance.[7]
On November 11, 2009, after admitting the petitioners evidence, the COMELEC
(Second Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines
the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community,
thus:
x x x a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation
and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional,
affectional and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender, of the same
gender, or more than one gender.
This definition of the LGBT sector makes it crystal clear that petitioner
tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul
wrote:
For this cause God gave them up into vile affections, for even
their women did change the natural use into that which is against
nature: And likewise also the men, leaving the natural use of the
woman, burned in their lust one toward another; men with men
working that which is unseemly, and receiving in themselves
that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women ye are indeed
a people transgressing beyond bounds. (7.81) And we rained down on
them a shower (of brimstone): Then see what was the end of those who
indulged in sin and crime! (7:84) He said: O my Lord! Help Thou me
against people who do mischief (29:30).
As correctly pointed out by the Law Department in its Comment dated October
2, 2008:
The ANG LADLAD apparently advocates sexual immorality as
indicated in the Petitions par. 6F: Consensual partnerships or
relationships by gays and lesbians who are already of age. It is
further indicated in par. 24 of the Petition which waves for the
record: In 2007, Men Having Sex with Men or MSMs in
the Philippines were estimated as 670,000 (Genesis 19 is the
history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license,
relationship, or accreditation. Hence, pertinent provisions of the
Civil Code and the Revised Penal Code are deemed part of the
requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code
which defines nuisance as Any act, omission, establishment,
 business, condition of property, or anything else which x x x (3)
shocks, defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: The
contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order
or public policy. Art 1409 of the Civil Code provides that
Contracts whose cause, object or purpose is contrary to
law, morals, good customs, public order or public policy are
inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal
Code, as amended, penalizes Immoral doctrines, obscene publications and
exhibitions and indecent shows as follows:
Art. 201. Immoral doctrines, obscene publications and
exhibitions, and indecent shows. The penalty of prision mayor
or a fine ranging from six thousand to twelve thousand pesos, or
both such imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines
openly contrary to public morals;
2. (a) The authors of obscene literature, published with their
knowledge in any form; the editors publishing such literature;
and the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other
place, exhibit indecent or immoral plays, scenes, acts or shows,
it being understood that the obscene literature or indecent or
immoral plays, scenes, acts or shows, whether live or in film,
which are prescribed by virtue hereof, shall include those which:
(1) glorify criminals or condone crimes; (2) serve no other
purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet
traffic in and use of prohibited drugs; and (5) are contrary to law,
public order, morals, good customs, established policies, lawful
orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints,
engravings, sculpture or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating
immoral doctrines but likewise for not being truthful when it said that it or any
of its nominees/party-list representatives have not violated or failed to comply
with laws, rules, or regulations relating to the elections.
Furthermore, should this Commission grant the petition, we will be exposing our
youth to an environment that does not conform to the teachings of our faith.
Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one
article that older practicing homosexuals are a threat to the youth. As an
agency of the government, ours too is the States avowed duty under Section
13, Article II of the Constitution to protect our youth from moral and spiritual
degradation.[8]
When Ang Ladlad sought reconsideration,[9] three commissioners voted to
overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V.
Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang
Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N.
Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking
for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system.
Even assuming that it has properly proven its under-representation and
marginalization, it cannot be said that Ladlads expressed sexual
orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-
list system of electing congressional representatives is to enable Filipino
citizens belonging to marginalized and under-represented sectors,
organizations and parties, and who lack well-defined political constituencies
but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the
House of Representatives.
If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative
organizations would have found themselves into the party-list race. But that is
not the intention of the framers of the law. The party-list system is not a tool to
advocate tolerance and acceptance of misunderstood persons or groups of
persons. Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the
nations only that their interests have not been brought to the attention of the
nation because of their under representation. Until the time comes
when Ladlad is able to justify that having mixed sexual orientations and
transgender identities is beneficial to the nation, its application for
accreditation under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine
jurisprudence, courts do not recognize lesbians, gays, homosexuals, and
bisexuals (LGBT) as a special class of individuals. x x xSignificantly, it has
also been held that homosexuality is not a constitutionally protected
fundamental right, and that nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal equality of
homosexual relations, as in the case of race or religion or belief.
xxxx
the Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for
Thus, even if societys understanding, tolerance, and acceptance of LGBTs is
accreditation.Ang Ladlad also sought the issuance ex parte of a preliminary mandatory
elevated, there can be no denying that Ladlad constituencies are still males and
females, and they will remain either male or female protected by the same
Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim
religious practices. Neither is there any attempt to any particular religious
groups moral rules on Ladlad. Rather, what are being adopted as moral
parameters and precepts are generally accepted public morals. They are
possibly religious-based, but as a society, the Philippines cannot ignore its
more than 500 years of Muslim and Christian upbringing, such that some
moral precepts espoused by said religions have sipped [sic] into society
and these are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the
land. Article 201 of the Revised Penal Code imposes the penalty of prision
mayor upon Those who shall publicly expound or proclaim doctrines openly
contrary to public morals. It penalizes immoral doctrines, obscene publications
and exhibition and indecent shows. Ang Ladlad apparently falls under these
legal provisions. This is clear from its Petitions paragraph 6F: Consensual
partnerships or relationships by gays and lesbians who are already of age It is
further indicated in par. 24 of the Petition which waves for the record: In
2007, Men Having Sex with Men or MSMs in the Philippines were estimated
as 670,000. Moreoever, Article 694 of the Civil Code defines nuisance as any
act, omission x x x or anything else x x x which shocks, defies or disregards
decency or morality x x x. These are all unlawful.[10]
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul
injunction against the COMELEC, which had previously announced that it would begin
printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file
its Comment on behalf of COMELEC not later than 12:00 noon of January 11,
2010.[11] Instead of filing a Comment, however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to Comment.[12] Somewhat surprisingly,
the OSG later filed a Comment in support of petitioners application.[13] Thus, in order to
give COMELEC the opportunity to fully ventilate its position, we required it to file its
own comment.[14] The COMELEC, through its Law Department, filed its Comment
on February 2, 2010.[15]
In the meantime, due to the urgency of the petition, we issued a temporary
restraining order on January 12, 2010, effective immediately and continuing until further
orders from this Court, directing the COMELEC to cease and desist from implementing
the Assailed Resolutions.[16]
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed
a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-
Intervention.[17]The CHR opined that the denial of Ang Ladlads petition on moral grounds
violated the standards and principles of the Constitution, the Universal Declaration of
Human Rights (UDHR), and the International Covenant on Civil and Political Rights
(ICCPR). On January 19, 2010, we granted the CHRs motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to
Intervene[18] which motion was granted on February 2, 2010.[19]
The Parties Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees against the
establishment of religion. Petitioner also claimed that the Assailed Resolutions
contravened its constitutional rights to privacy, freedom of speech and assembly, and
equal protection of laws, as well as constituted violations of the Philippines international
obligations against discrimination based on sexual orientation.
The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in
denying petitioners application for registration since there was no basis for COMELECs
allegations of immorality. It also opined that LGBTs have their own special interests and
concerns which should have been recognized by the COMELEC as a separate
classification. However, insofar as the purported violations of petitioners freedom of
speech, expression, and assembly were concerned, the OSG maintained that there had
been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete
and genuine national political agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued for the first time that the LGBT sector is not
among the sectors enumerated by the Constitution and RA 7941, and that petitioner made
untruthful statements in its petition when it alleged its national existence contrary to actual
verification reports by COMELECs field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the
Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration on the ground
that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it
associated with or related to any of the sectors in the enumeration.
 group.[22] Ang Ladlad also represented itself to be a national LGBT umbrella organization
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the with affiliates around the Philippines composed of the following LGBT networks:
proposition that only those sectors specifically enumerated in the law or related to said
sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, Abra Gay Association
handicapped, women, youth, veterans, overseas workers, and professionals) may be Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW
Arts Center of Cabanatuan City Nueva Ecija
Labor Party v. Commission on Elections,[20] the enumeration of marginalized and under- Boys Legion Metro Manila
represented sectors is not exclusive. The crucial element is not whether a sector is Cagayan de Oro People Like Us (CDO PLUS)
specifically enumerated, but whether a particular organization complies with the Cant Live in the Closet, Inc. (CLIC) Metro Manila
requirements of the Constitution and RA 7941. Cebu Pride Cebu City
Respondent also argues that Ang Ladlad made untruthful statements in its petition Circle of Friends
when it alleged that it had nationwide existence through its members and affiliate Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
organizations. The COMELEC claims that upon verification by its field personnel, it was Gay and Lesbian Activists Network for Gender Equality (GALANG)
shown that save for a few isolated places in the country, petitioner does not exist in almost Metro Manila
all provinces in the country.[21] Gay Mens Support Group (GMSG) Metro Manila
This argument that petitioner made untruthful statements in its petition when it Gay United for Peace and Solidarity (GUPS) Lanao del Norte
alleged its national existence is a new one; previously, the COMELEC claimed that Iloilo City Gay Association Iloilo City
petitioner was not being truthful when it said that it or any of its nominees/party-list Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
representatives have not violated or failed to comply with laws, rules, or regulations
LUMINA Baguio City
relating to the elections. Nowhere was this ground for denial of petitioners accreditation Marikina Gay Association Metro Manila
mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, Metropolitan Community Church (MCC) Metro Manila
considering that the reports of petitioners alleged non-existence were already available to Naga City Gay Association Naga City
the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is ONE BACARDI
irregular procedure; at worst, a belated afterthought, a change in respondents theory, and Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
a serious violation of petitioners right to procedural due process.
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
Nonetheless, we find that there has been no misrepresentation. A cursory perusal San Jose del Monte Gay Association Bulacan
of Ang Ladlads initial petition shows that it never claimed to exist in each province of Sining Kayumanggi Royal Family Rizal
the Philippines. Rather, petitioner alleged that the LGBT community in Society of Transexual Women of the Philippines (STRAP)
the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 Metro Manila
Soul Jive Antipolo, Rizal
affiliates and members around the country, and 4,044 members in its electronic discussion
 The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City[23]
Since the COMELEC only searched for the names ANG LADLAD LGBT
or LADLAD LGBT, it is no surprise that they found that petitioner had no presence in any
of these regions. In fact, if COMELECs findings are to be believed, petitioner does not
even exist in Quezon City, which is registered as Ang Ladlads principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from COMELECs
moral objection and the belated allegation of non-existence, nowhere in the records has
the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list
organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong
Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof.
Religion as the Basis for Refusal to Accept
Ang Ladlads Petition for Registration
Our Constitution provides in Article III, Section 5 that [n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof. At bottom,
what our non-establishment clause calls for is government neutrality in religious
matters.[24] Clearly, governmental reliance on religious justification is inconsistent with
this policy of neutrality.[25] We thus find that it was grave violation of the non-
establishment clause for the COMELEC to utilize the Bible and the Koran to justify the
exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions
should depend, instead, on whether the COMELEC is able to advance some justification
for its rulings beyond mere conformity to religious doctrine. Otherwise stated,
government must act for secular purposes and in ways that have primarily secular
effects. As we held in Estrada v. Escritor:[26]
x x x The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public
moral disputes may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require conformity
to what some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed
by a religious belief, i.e., to a "compelled religion," anathema to religious
freedom. Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the policy. As
a result, government will not provide full religious freedom for all its citizens,
or even make it appear that those whose beliefs are disapproved are second-
class citizens.
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That
is, the government proscribes this conduct because it is "detrimental (or
dangerous) to those conditions upon which depend the existence and progress
of human society" and not because the conduct is proscribed by the beliefs of
one religion or the other. Although admittedly, moral judgments based on
religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus
have religious opinions and moral codes with a compelling influence on them;
the human mind endeavors to regulate the temporal and spiritual institutions of
society in a uniform manner, harmonizing earth with heaven. Succinctly put, a
law could be religious or Kantian or Aquinian or utilitarian in its deepest roots,
but it must have an articulable and discernible secular purpose and justification
to pass scrutiny of the religion clauses. x x x Recognizing the religious nature
of the Filipinos and the elevating influence of religion in society, however, the
 Philippine constitution's religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that government must pursue its
secular goals and interests but at the same time strive to uphold religious liberty
to the greatest extent possible within flexible constitutional limits. Thus,
although the morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion, provided it does
not offend compelling state interests.[27]
Public Morals as a Ground to Deny Ang
Ladlads Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and
homosexual conduct may be religion-based, it has long been transplanted into generally
accepted public morals. The COMELEC argues:
Petitioners accreditation was denied not necessarily because their group
consists of LGBTs but because of the danger it poses to the people especially
the youth. Once it is recognized by the government, a sector which believes
that there is nothing wrong in having sexual relations with individuals of the
same gender is a bad example. It will bring down the standard of morals we
cherish in our civilized society. Any society without a set of moral precepts is
in danger of losing its own existence.[28]
We are not blind to the fact that, through the years, homosexual conduct, and
perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not
difficult to imagine the reasons behind this censure religious beliefs, convictions about the
preservation of marriage, family, and procreation, even dislike or distrust of homosexuals
themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has
not seen fit to criminalize homosexual conduct. Evidently, therefore, these generally
accepted public morals have not been convincingly transplanted into the realm of law.[29]
The Assailed Resolutions have not identified any specific overt immoral act performed
by Ang Ladlad. Even the OSG agrees that there should have been a finding by the
COMELEC that the groups members have committed or are committing immoral
acts.[30] The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a
different gender, or more than one gender, but mere attraction does not
translate to immoral acts. There is a great divide between thought and
action. Reduction ad absurdum. If immoral thoughts could be penalized,
COMELEC would have its hands full of disqualification cases against both the
straights and the gays. Certainly this is not the intendment of the law.[31]
Respondent has failed to explain what societal ills are sought to be prevented, or
why special protection is required for the youth. Neither has the COMELEC
condescended to justify its position that petitioners admission into the party-list system
would be so harmful as to irreparably damage the moral fabric of society. We, of course,
do not suggest that the state is wholly without authority to regulate matters concerning
morality, sexuality, and sexual relations, and we recognize that the government will and
should continue to restrict behavior considered detrimental to society. Nonetheless, we
cannot countenance advocates who, undoubtedly with the loftiest of intentions, situate
morality on one end of an argument or another, without bothering to go through the rigors
of legal reasoning and explanation. In this, the notion of morality is robbed of all
value. Clearly then, the bare invocation of morality will not remove an issue from our
scrutiny.
We also find the COMELECs reference to purported violations of our penal and
civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a
nuisance as any act, omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality, the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil action, or
abatement without judicial proceedings.[32] A violation of Article 201 of the Revised Penal
Code, on the other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation of laws is
not proof, and a mere blanket invocation of public morals cannot replace the institution of
civil or criminal proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in the party-
list system. The denial of Ang Ladlads registration on purely moral grounds amounts
more to a statement of dislike and disapproval of homosexuals, rather than a tool to further
any substantial public interest.Respondents blanket justifications give rise to the inevitable
conclusion that the COMELEC targets homosexuals themselves as a class, not because
of any particular morally reprehensible act.It is this selective targeting that implicates our
equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which
provides nor shall any person be denied equal protection of the laws, courts have never
interpreted the provision as an absolute prohibition on classification. Equality, said
Aristotle, consists in the same treatment of similar persons.[33] The equal protection clause
guarantees that no person or class of persons shall be deprived of the same protection of
laws which is enjoyed by other persons or other classes in the same place and in like
circumstances.[34]
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the classification as long as it bears a rational
relationship to some legitimate government end.[35] In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas,[36] we declared that [i]n our jurisdiction,
the standard of analysis of equal protection challenges x x x have followed the rational
basis test, coupled with a deferential attitude to legislative classifications and a reluctance
to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution.[37]
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason
to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has
expressed no such belief. No law exists to criminalize homosexual behavior or
expressions or parties about homosexual behavior. Indeed, even if we were to assume that
public opinion is as the COMELEC describes it, the asserted state interest here that is,
moral disapproval of an unpopular minority is not a legitimate state interest that is
sufficient to satisfy rational basis review under the equal protection clause. The
COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot
contribute to the formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on the same
basis as other political parties similarly situated. State intrusion in this case is equally
burdensome. Hence, laws of general application should apply with equal force to LGBTs,
and they deserve to participate in the party-list system on the same basis as other
marginalized and under-represented sectors.
It bears stressing that our finding that COMELECs act of differentiating LGBTs
from heterosexuals insofar as the party-list system is concerned does not imply that any
other law distinguishing between heterosexuals and homosexuals under different
circumstances would similarly fail. We disagree with the OSGs position that homosexuals
are a class in themselves for the purposes of the equal protection clause.[38] We are not
prepared to single out homosexuals as a separate class meriting special or differentiated
treatment. We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be
recognized under the same basis as all other groups similarly situated, and that the
COMELEC made an unwarranted and impermissible classification not justified by the
circumstances of the case.
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda and
attempt to persuade society of the validity of its position through normal democratic
means.[39] It is in the public square that deeply held convictions and differing opinions
should be distilled and deliberated upon. As we held in Estrada v. Escritor:[40]
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together. Citizens
are the bearers of opinion, including opinion shaped by, or espousing religious
belief, and these citizens have equal access to the public square. In this
representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation.
Through a constitutionally designed process, the people deliberate and decide.
Majority rule is a necessary principle in this democratic governance. Thus,
when public deliberation on moral judgments is finally crystallized into law,
the laws will largely reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups. Nevertheless, in the very act of adopting and
accepting a constitution and the limits it specifies including protection of
religious freedom "not only for a minority, however small not only for a
majority, however large but for each of us" the majority imposes upon itself a
self-denying ordinance. It promises not to do what it otherwise could do: to
ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic
society, and this freedom applies not only to those that are favorably received but also to
those that offend, shock, or disturb. Any restriction imposed in this sphere must be
proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not
for the COMELEC or this Court to impose its views on the populace. Otherwise stated,
the COMELEC is certainly not free to interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is
not illegal in this country. It follows that both expressions concerning ones homosexuality
and the activity of forming a political association that supports LGBT individuals are
protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public morality does
not justify criminalizing same-sex conduct.[41] European and United Nations judicial
decisions have ruled in favor of gay rights claimants on both privacy and equality grounds,
citing general privacy and equal protection provisions in foreign and international
texts.[42] To the extent that there is much to learn from other jurisdictions that have
reflected on the issues we face here, such jurisprudence is certainly illuminating.
These foreign authorities, while not formally binding on Philippine courts, may
nevertheless have persuasive influence on the Courts analysis.
In the area of freedom of expression, for instance, United States courts have ruled
that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In
order to justify the prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by something more than a mere desire to avoid
the discomfort and unpleasantness that always accompany an unpopular viewpoint.[43]
With respect to freedom of association for the advancement of ideas and beliefs,
in Europe, with its vibrant human rights tradition, the European Court of Human Rights
(ECHR) has repeatedly stated that a political party may campaign for a change in the law
or the constitutional structures of a state if it uses legal and democratic means and the
changes it proposes are consistent with democratic principles. The ECHR has emphasized
that political ideas that challenge the existing order and whose realization is advocated by
peaceful means must be afforded a proper opportunity of expression through the exercise
of the right of association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population.[44]A political group should not be hindered
solely because it seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned.[45] Only if a political party incites
violence or puts forward policies that are incompatible with democracy does it fall outside
the protection of the freedom of association guarantee.[46]
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that
view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal
fervor that relationships between individuals of the same sex are morally equivalent to
heterosexual relationships. They, too, are entitled to hold and express that view. However,
as far as this Court is concerned, our democracy precludes using the religious or moral
views of one part of the community to exclude from consideration the values of other
members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights
litigants. It well may be that this Decision will only serve to highlight the discrepancy
between the rigid constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal,
reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt
nor expect to affect individual perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent
punishment imposed on Ang Ladlad, and its members have not been deprived of their
right to voluntarily associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly
denied. [COMELEC] simply exercised its authority to review and verify the
qualifications of petitioner as a sectoral party applying to participate in the
party-list system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of
the petitioner to freely take part in the conduct of elections. Their right to vote
will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends
that the denial of Ang Ladlads petition has the clear and immediate effect of
limiting, if not outrightly nullifying the capacity of its members to fully and
equally participate in public life through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right
but a privilege subject to limitations imposed by law. x x x[47]
The OSG fails to recall that petitioner has, in fact, established its qualifications to
participate in the party-list system, and as advanced by the OSG itself the moral objection
offered by the COMELEC was not a limitation imposed by law. To the extent, therefore,
that the petitioner has been precluded, because of COMELECs action, from publicly
expressing its views as a political party and participating on an equal basis in the political
process with other equally-qualified party-list candidates, we find that there has, indeed,
been a transgression of petitioners fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and
promise, international human rights law, in particular, has grown dynamically in its
attempt to bring about a more just and humane world order. For individuals and groups
struggling with inadequate structural and governmental support, international human
rights norms are particularly significant, and should be effectively enforced in domestic
legal systems so that such norms may become actual, rather than ideal, standards of
conduct.
Our Decision today is fully in accord with our international obligations to protect
and promote human rights. In particular, we explicitly recognize the principle of non-
discrimination as it relates to the right to electoral participation, enunciated in the UDHR
and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination
to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or
other status.
In this context, the principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically enumerated as a status or ratio
for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has
opined that the reference to sex in Article 26 should be construed to include sexual
orientation.[48] Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various
international agreements.[49]
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of
the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his
country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
participation is elaborated by the Human Rights Committee in its General Comment No.
25 (Participation in Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every
citizen to take part in the conduct of public affairs, the right to vote and to be
elected and the right to have access to public service. Whatever form of
constitution or government is in force, the Covenant requires States to adopt
such legislative and other measures as may be necessary to ensure that citizens
have an effective opportunity to enjoy the rights it protects. Article 25 lies at
the core of democratic government based on the consent of the people and in
conformity with the principles of the Covenant.
xxxx
 to sanction these innovations. This has the effect of diluting real human rights, and is a
15. The effective implementation of the right and the opportunity to result of the notion that if wants are couched in rights language, then they are no longer
stand for elective office ensures that persons entitled to vote have a free choice
controversial.
of candidates. Any restrictions on the right to stand for election, such as
minimum age, must be justifiable on objective and reasonable criteria. Persons
who are otherwise eligible to stand for election should not be excluded by Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
unreasonable or discriminatory requirements such as education, residence or declaration formulated by various international law professors, are at best de lege
descent, or by reason of political affiliation. No person should suffer ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of
discrimination or disadvantage of any kind because of that person's candidacy. contemporary international law is characterized by the soft law nomenclature, i.e.,
States parties should indicate and explain the legislative provisions which international law is full of principles that promote international cooperation, harmony, and
exclude any group or category of persons from elective office.[50]
respect for human rights, most of which amount to no more than well-meaning desires,
without the support of either State practice or opinio juris.[53]
We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines international law obligations, the blanket
As a final note, we cannot help but observe that the social issues presented by this
invocation of international law is not the panacea for all social ills. We refer now to the
case are emotionally charged, societal attitudes are in flux, even the psychiatric and
petitioners invocation of the Yogyakarta Principles (the Application of International
religious communities are divided in opinion. This Courts role is not to impose its own
Human Rights Law In Relation to Sexual Orientation and Gender Identity),[51] which
view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it
petitioner declares to reflect binding principles of international law.
can, uninfluenced by public opinion, and confident in the knowledge that our democracy
is resilient enough to withstand vigorous debate.
At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the Philippines. There are declarations
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the
and obligations outlined in said Principles which are not reflective of the current state of
Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP No.
international law, and do not find basis in any of the sources of international law
09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed
enumerated under Article 38(1) of the Statute of the International Court of
to GRANT petitioners application for party-list accreditation.
Justice.[52] Petitioner has not undertaken any objective and rigorous analysis of these
SO ORDERED.
alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society or a certain segment of
society wants or demands is automatically a human right. This is not an arbitrary human
intervention that may be added to or subtracted from at will. It is unfortunate that much
of what passes for human rights today is a much broader context of needs that identifies
many social desires as rights in order to further claims that international law obliges states
G.R. No. 212426
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO, JR., SR.
MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY
L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO,
DR. ROLAND SIMBULAN, AND TEDDY CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE
SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY
ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
FLORENCIO ABAD, AND ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL
EMMANUEL T. BAUTISTA, Respondents.
x-----------------------x
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY
GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J.
COLMENARES AND CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS PARTY-
LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE
FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON,
MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN), REPRESENTED BY
SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN,
RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G.
BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES CHIEF OF
STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE UNDERSECRETARY PIO LORENZO
BATINO, AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA,
DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND DND
ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE
PHILIPPINES ON EDCA, Respondents.
x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE), REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND
GAITE, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO,
REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA,
VIOLETA ESPIRITU, VIRGINIA FLORES, AND ARMANDO TEODORO, JR., Petitioners-in-
Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality of the Enhanced Defense Cooperation
Agreement (EDCA) between the Republic of the Philippines and the United States of America (U.S.).
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess
of jurisdiction when they entered into EDCA with the U.S., 2 claiming that the instrument violated
multiple constitutional provisions.3 In reply, respondents argue that petitioners lack standing to bring
the suit. To support the legality of their actions, respondents invoke the 1987 Constitution, treaties,
and judicial precedents.4
A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of
the constitutional powers and roles of the President and the Senate in respect of the above issues.
A more detailed discussion of these powers and roles will be made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE,
FOREIGN RELATIONS, AND EDCA
A. The Prime Duty of the State and the Consolidation of Executive Power in the President
Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig
ang aking mga tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng
Pilipinas, pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas
nito, magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa paglilingkod sa Bansa.
Kasihan nawa aka ng Diyos.
- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas5
The 1987 Constitution has "vested the executive power in the President of the Republic of the
Philippines."6 While the vastness of the executive power that has been consolidated in the person of
the President cannot be expressed fully in one provision, the Constitution has stated the prime duty
of the government, of which the President is the head:
The prime duty of the Government is to serve and protect the people. The Government may call
upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil service.7 (Emphases supplied)
B. The duty to protect the territory and the citizens of the Philippines, the power to call upon
the people to defend the State, and the President as Commander-in-Chief
The duty to protect the State and its people must be carried out earnestly and effectively throughout
the whole territory of the Philippines in accordance with the constitutional provision on national
territory. Hence, the President of the Philippines, as the sole repository of executive power, is the
guardian of the Philippine archipelago, including all the islands and waters embraced therein and all
other territories over which it has sovereignty or jurisdiction. These territories consist of its terrestrial,
fluvial, and aerial domains; including its territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas; and the waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions.8
To carry out this important duty, the President is equipped with authority over the Armed Forces of
the Philippines (AFP),9 which is the protector of the people and the state. The AFP's role is to secure
the sovereignty of the State and the integrity of the national territory.10 In addition, the Executive is
constitutionally empowered to maintain peace and order; protect life, liberty, and property; and
promote the general welfare.11
In recognition of these powers, Congress has specified that the President must oversee, ensure, and
reinforce our defensive capabilities against external and internal threats12 and, in the same vein,
ensure that the country is adequately prepared for all national and local emergencies arising from
natural and man-made disasters.13
To be sure, this power is limited by the Constitution itself. To illustrate, the President may call out the
AFP to prevent or suppress instances of lawless violence, invasion or rebellion,14 but not suspend the
privilege of the writ of habeas corpus for a period exceeding 60 days, or place the Philippines or any
part thereof under martial law exceeding that same span. In the exercise of these powers, the
President is also duty-bound to submit a report to Congress, in person or in writing, within 48 hours
from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus;
and Congress may in turn revoke the proclamation or suspension. The same provision provides for
the Supreme Court's review of the factual basis for the proclamation or suspension, as well as the
promulgation of the decision within 30 days from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ in the conduct of foreign
relations.15 Since every state has the capacity to interact with and engage in relations with other
sovereign states,16 it is but logical that every state must vest in an agent the authority to represent its
interests to those other sovereign states.
The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that department
of government which can act on the basis of the best available information and can decide with
decisiveness. x x x It is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular officials regularly brief
him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity,
nay, validity of his actions are adjudged under less stringent standards, lest their judicial repudiation
lead to breach of an international obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems with equally undesirable consequences.17
The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive
must give paramount importance to the sovereignty of the nation, the integrity of its territory, its
interest, and the right of the sovereign Filipino people to self-determination.18 In specific provisions,
the President's power is also limited, or at least shared, as in Section 2 of Article II on the conduct of
war; Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements;
Sections 4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of
Article XVIII on treaties and international agreements entered into prior to the Constitution and on the
presence of foreign military troops, bases, or facilities.
D. The relationship between the two major presidential functions and the role of the Senate
Clearly, the power to defend the State and to act as its representative in the international sphere
inheres in the person of the President. This power, however, does not crystallize into absolute
discretion to craft whatever instrument the Chief Executive so desires. As previously mentioned, the
Senate has a role in ensuring that treaties or international agreements the President enters into, as
contemplated in Section 21 of Article VII of the Constitution, obtain the approval of two-thirds of its
members.
Previously, treaties under the 1973 Constitution required ratification by a majority of the Batasang
Pambansa,19except in instances wherein the President "may enter into international treaties or
agreements as the national welfare and interest may require."20 This left a large margin of discretion
that the President could use to bypass the Legislature altogether. This was a departure from the 1935
Constitution, which explicitly gave the President the power to enter into treaties only with the
concurrence of two-thirds of all the Members of the Senate.21 The 1987 Constitution returned the
Senate's power22 and, with it, the legislative's traditional role in foreign affairs. 23
The responsibility of the President when it comes to treaties and international agreements under the
present Constitution is therefore shared with the Senate. This shared role, petitioners claim, is
bypassed by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
A. U.S. takeover of Spanish colonization and its military bases, and the transition to Philippine
independence
The presence of the U.S. military forces in the country can be traced to their pivotal victory in the
1898 Battle of Manila Bay during the Spanish-American War.24 Spain relinquished its sovereignty
over the Philippine Islands in favor of the U.S. upon its formal surrender a few months later.25 By
1899, the Americans had consolidated a military administration in the archipelago. 26
When it became clear that the American forces intended to impose colonial control over the Philippine
Islands, General Emilio Aguinaldo immediately led the Filipinos into an all-out war against the
U.S.27 The Filipinos were ultimately defeated in the Philippine-American War, which lasted until 1902
and led to the downfall of the first Philippine Republic.28 The Americans henceforth began to
strengthen their foothold in the country. 29 They took over and expanded the former Spanish Naval
Base in Subic Bay, Zambales, and put up a cavalry post called Fort Stotsenberg in Pampanga, now
known as Clark Air Base.30
When talks of the eventual independence of the Philippine Islands gained ground, the U.S.
manifested the desire to maintain military bases and armed forces in the country. 31 The U.S.
Congress later enacted the Hare-Hawes-Cutting Act of 1933, which required that the proposed
constitution of an independent Philippines recognize the right of the U.S. to maintain the latter's
armed forces and military bases.32 The Philippine Legislature rejected that law, as it also gave the
U.S. the power to unilaterally designate any part of Philippine territory as a permanent military or
naval base of the U.S. within two years from complete independence. 33
The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or the
Philippine Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act, the new law
provided for the surrender to the Commonwealth Government of "all military and other reservations"
of the U.S. government in the Philippines, except "naval reservations and refueling
stations."34 Furthermore, the law authorized the U.S. President to enter into negotiations for the
adjustment and settlement of all questions relating to naval reservations and fueling stations within
two years after the Philippines would have gained independence.35 Under the Tydings-McDuffie Act,
the U.S. President would proclaim the American withdrawal and surrender of sovereignty over the
islands 10 years after the inauguration of the new government in the Philippines.36 This law eventually
led to the promulgation of the 1935 Philippine Constitution.
The original plan to surrender the military bases changed.37 At the height of the Second World War,
the Philippine and the U.S. Legislatures each passed resolutions authorizing their respective
Presidents to negotiate the matter of retaining military bases in the country after the planned
withdrawal of the U.S.38 Subsequently, in 1946, the countries entered into the Treaty of General
Relations, in which the U.S. relinquished all control and sovereignty over the Philippine
Islands, except the areas that would be covered by the American military bases in the country. 39 This
treaty eventually led to the creation of the post-colonial legal regime on which would hinge the
continued presence of U.S. military forces until 1991: the Military Bases Agreement (MBA) of 1947,
the Military Assistance Agreement of 1947, and the Mutual Defense Treaty (MDT) of 1951.40
B. Former legal regime on the presence of U.S. armed forces in the territory of an independent
Philippines (1946-1991)
Soon after the Philippines was granted independence, the two countries entered into their first military
arrangement pursuant to the Treaty of General Relations - the 1947 MBA.41 The Senate concurred
on the premise of "mutuality of security interest,"42 which provided for the presence and operation of
23 U.S. military bases in the Philippines for 99 years or until the year 2046. 43 The treaty also obliged
the Philippines to negotiate with the U.S. to allow the latter to expand the existing bases or to acquire
new ones as military necessity might require.44
A number of significant amendments to the 1947 MBA were made.45 With respect to its duration, the
parties entered into the Ramos-Rusk Agreement of 1966, which reduced the term of the treaty from
99 years to a total of 44 years or until 1991.46 Concerning the number of U.S. military bases in the
country, the Bohlen-Serrano Memorandum of Agreement provided for the return to the Philippines of
17 U.S. military bases covering a total area of 117,075 hectares. 47 Twelve years later, the U.S.
returned Sangley Point in Cavite City through an exchange of notes.48 Then, through the Romulo-
Murphy Exchange of Notes of 1979, the parties agreed to the recognition of Philippine sovereignty
over Clark and Subic Bases and the reduction of the areas that could be used by the U.S.
military.49 The agreement also provided for the mandatory review of the treaty every five years.50 In
1983, the parties revised the 1947 MBA through the Romualdez-Armacost Agreement.51 The revision
pertained to the operational use of the military bases by the U.S. government within the context of
Philippine sovereignty,52 including the need for prior consultation with the Philippine government on
the former' s use of the bases for military combat operations or the establishment of long-range
missiles.53
Pursuant to the legislative authorization granted under Republic Act No. 9,54 the President also
entered into the 1947 Military Assistance Agreement55 with the U.S. This executive agreement
established the conditions under which U.S. military assistance would be granted to the
Philippines,56 particularly the provision of military arms, ammunitions, supplies, equipment, vessels,
services, and training for the latter's defense forces.57 An exchange of notes in 1953 made it clear
that the agreement would remain in force until terminated by any of the parties. 58
To further strengthen their defense and security relationship, 59 the Philippines and the U.S. next
entered into the MDT in 1951. Concurred in by both the Philippine60 and the U.S.61 Senates, the treaty
has two main features: first, it allowed for mutual assistance in maintaining and developing their
individual and collective capacities to resist an armed attack; 62 and second, it provided for their mutual
self-defense in the event of an armed attack against the territory of either party. 63 The treaty was
premised on their recognition that an armed attack on either of them would equally be a threat to the
security of the other.64
C. Current legal regime on the presence of U.S. armed forces in the country
In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S. negotiated
for a possible renewal of their defense and security relationship. 65 Termed as the Treaty of Friendship,
Cooperation and Security, the countries sought to recast their military ties by providing a new
framework for their defense cooperation and the use of Philippine installations. 66 One of the proposed
provisions included an arrangement in which U.S. forces would be granted the use of certain
installations within the Philippine naval base in Subic.67 On 16 September 1991, the Senate rejected
the proposed treaty.68
The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement
dealing with the treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-
scale joint military exercises.69In the meantime, the respective governments of the two countries
agreed70 to hold joint exercises at a substantially reduced level.71 The military arrangements between
them were revived in 1999 when they concluded the first Visiting Forces Agreement (VFA). 72
As a "reaffirm[ation] [of the] obligations under the MDT," 73 the VFA has laid down the regulatory
mechanism for the treatment of U.S. military and civilian personnel visiting the country.74 It contains
provisions on the entry and departure of U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of certain claims; the importation and
exportation of equipment, materials, supplies, and other pieces of property owned by the U.S.
government; and the movement of U.S. military vehicles, vessels, and aircraft into and within the
country.75 The Philippines and the U.S. also entered into a second counterpart agreement (VFA II),
which in turn regulated the treatment of Philippine military and civilian personnel visiting the
U.S.76 The Philippine Senate concurred in the first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao to take
part in joint military exercises with their Filipino counterparts.78 Called Balikatan, these exercises
involved trainings aimed at simulating joint military maneuvers pursuant to the MDT. 79
In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement
to "further the interoperability, readiness, and effectiveness of their respective military forces"80 in
accordance with the MDT, the Military Assistance Agreement of 1953, and the VFA. 81 The new
agreement outlined the basic terms, conditions, and procedures for facilitating the reciprocal
provision of logistics support, supplies, and services between the military forces of the two
countries.82 The phrase "logistics support and services" includes billeting, operations support,
construction and use of temporary structures, and storage services during an approved activity under
the existing military arrangements.83 Already extended twice, the agreement will last until 2017.84
D. The Enhanced Defense Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct activities within certain
"Agreed Locations" in the country. It was not transmitted to the Senate on the executive's
understanding that to do so was no longer necessary.85 Accordingly, in June 2014, the Department
of Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes confirming the
completion of all necessary internal requirements for the agreement to enter into force in the two
countries.86
According to the Philippine government, the conclusion of EDCA was the result of intensive and
comprehensive negotiations in the course of almost two years.87 After eight rounds of negotiations,
the Secretary of National Defense and the U.S. Ambassador to the Philippines signed the agreement
on 28 April 2014.88 President Benigno S. Aquino III ratified EDCA on 6 June 2014.89 The OSG clarified
during the oral arguments90 that the Philippine and the U.S. governments had yet to agree formally
on the specific sites of the Agreed Locations mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the constitutionality of EDCA.
They primarily argue that it should have been in the form of a treaty concurred in by the Senate, not
an executive agreement.
On 10 November 2015, months after the oral arguments were concluded and the parties ordered to
file their respective memoranda, the Senators adopted Senate Resolution No. (SR) 105. 91 The
resolution expresses the "strong sense"92 of the Senators that for EDCA to become valid and
effective, it must first be transmitted to the Senate for deliberation and concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive Department committed grave abuse of
discretion in entering into EDCA in the form of an executive agreement. For this reason, we cull the
issues before us:
A. Whether the essential requisites for judicial review are present
B. Whether the President may enter into an executive agreement on foreign military
bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution, as well as
with existing laws and treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have been satisfied
Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for violating
the Constitution. They stress that our fundamental law is explicit in prohibiting the presence of foreign
military forces in the country, except under a treaty concurred in by the Senate. Before this Court
may begin to analyze the constitutionality or validity of an official act of a coequal branch of
government, however, petitioners must show that they have satisfied all the essential requisites for
judicial review.93
Distinguished from the general notion of judicial power, the power of judicial review specially refers
to both the authority and the duty of this Court to determine whether a branch or an instrumentality
of government has acted beyond the scope of the latter's constitutional powers. 94 As articulated in
Section 1, Article VIII of the Constitution, the power of judicial review involves the power to resolve
cases in which the questions concern the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation.95 In Angara v. Electoral Commission, this Court exhaustively discussed this "moderating
power" as part of the system of checks and balances under the Constitution. In our fundamental law,
the role of the Court is to determine whether a branch of government has adhered to the specific
restrictions and limitations of the latter's power: 96
The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within
its own sphere. But it does not follow from the fact that the three powers are to be kept separate
and distinct that the Constitution intended them to be absolutely unrestrained and independent of
each other. The Constitution has provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the government. x x x. And the
judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and hence to declare executive
and legislative acts void if violative of the Constitution.
xxxx
As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole, under a
system of checks and balances, and subject to specific limitations and restrictions provided
in the said instrument. The Constitution sets forth in no uncertain language the restrictions
and limitations upon governmental powers and agencies. If these restrictions and limitations
are transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional channels, for
then the distribution of powers would be mere verbiage, the bill of rights mere expressions of
sentiment, and the principles of good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are real as they should be in any living
constitution. x x x. In our case, this moderating power is granted, if not expressly, by clear implication
from section 2 of article VIII of [the 1935] Constitution.
The Constitution is a definition of the powers of government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary
as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review under the Constitution. x x
x x. (Emphases supplied)
The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that
power has been extended to the determination of whether in matters traditionally considered to be
within the sphere of appreciation of another branch of government, an exercise of discretion has
been attended with grave abuse.97 The expansion of this power has made the political question
doctrine "no longer the insurmountable obstacle to the exercise of judicial power or the impenetrable
shield that protects executive and legislative actions from judicial inquiry or review."98
This moderating power, however, must be exercised carefully and only if it cannot be completely
avoided. We stress that our Constitution is so incisively designed that it identifies the spheres of
expertise within which the different branches of government shall function and the questions of policy
that they shall resolve.99 Since the power of judicial review involves the delicate exercise of examining
the validity or constitutionality of an act of a coequal branch of government, this Court must
continually exercise restraint to avoid the risk of supplanting the wisdom of the constitutionally
appointed actor with that of its own.100
Even as we are left with no recourse but to bare our power to check an act of a coequal branch of
government - in this case the executive - we must abide by the stringent requirements for the exercise
of that power under the Constitution. Demetria v. Alba101 and Francisco v. House of
Representatives102 cite the "pillars" of the limitations on the power of judicial review as enunciated in
the concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley
Authority.103 Francisco104 redressed these "pillars" under the following categories:
1. That there be absolute necessity of deciding a case
2. That rules of constitutional law shall be formulated only as required by the facts of the
case
3. That judgment may not be sustained on some other ground
4. That there be actual injury sustained by the party by reason of the operation of the
statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of constitutionality
(Emphases supplied)
These are the specific safeguards laid down by the Court when it exercises its power of judicial
review.105 Guided by these pillars, it may invoke the power only when the following four stringent
requirements are satisfied: (a) there is an actual case or controversy; (b) petitioners possess locus
standi; (c) the question of constitutionality is raised at the earliest opportunity; and (d) the issue of
constitutionality is the lis mota of the case.106 Of these four, the first two conditions will be the focus of
our discussion.
1. Petitioners have shown the presence of an actual case or controversy.
The OSG maintains107 that there is no actual case or controversy that exists, since the Senators have
not been deprived of the opportunity to invoke the privileges of the institution they are representing.
It contends that the nonparticipation of the Senators in the present petitions only confirms that even
they believe that EDCA is a binding executive agreement that does not require their concurrence.
It must be emphasized that the Senate has already expressed its position through SR 105.108 Through
the Resolution, the Senate has taken a position contrary to that of the OSG. As the body tasked to
participate in foreign affairs by ratifying treaties, its belief that EDCA infringes upon its constitutional
role indicates that an actual controversy - albeit brought to the Court by non-Senators, exists.
Moreover, we cannot consider the sheer abstention of the Senators from the present proceedings as
basis for finding that there is no actual case or controversy before us. We point out that the focus of
this requirement is the ripeness for adjudication of the matter at hand, as opposed to its being merely
conjectural or anticipatory.109 The case must involve a definite and concrete issue involving real
parties with conflicting legal rights and legal claims admitting of specific relief through a decree
conclusive in nature.110 It should not equate with a mere request for an opinion or advice on what the
law would be upon an abstract, hypothetical, or contingent state of facts. 111 As explained in Angara v.
Electoral Commission:112
[The] power of judicial review is limited to actual cases and controversies to be exercised after
full opportunity of argument by the parties, and limited further to the constitutional question raised
or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the executive
and legislative departments of the government. (Emphases supplied)
We find that the matter before us involves an actual case or controversy that is already ripe for
adjudication. The Executive Department has already sent an official confirmation to the U.S.
Embassy that "all internal requirements of the Philippines x x x have already been complied
with."113 By this exchange of diplomatic notes, the Executive Department effectively performed the
last act required under Article XII(l) of EDCA before the agreement entered into force. Section 25,
Article XVIII of the Constitution, is clear that the presence of foreign military forces in the country shall
only be allowed by virtue of a treaty concurred in by the Senate. Hence, the performance of an official
act by the Executive Department that led to the entry into force of an executive agreement was
sufficient to satisfy the actual case or controversy requirement.
2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless raise issues
involving matters of transcendental importance.
The question of locus standi or legal standing focuses on the determination of whether those
assailing the governmental act have the right of appearance to bring the matter to the court for
adjudication.114 They must show that they have a personal and substantial interest in the case, such
that they have sustained or are in immediate danger of sustaining, some direct injury as a
consequence of the enforcement of the challenged governmental act.115 Here, "interest" in the
question involved must be material - an interest that is in issue and will be affected by the official act
- as distinguished from being merely incidental or general.116 Clearly, it would be insufficient to show
that the law or any governmental act is invalid, and that petitioners stand to suffer in some indefinite
way.117 They must show that they have a particular interest in bringing the suit, and that they have
been or are about to be denied some right or privilege to which they are lawfully entitled, or that they
are about to be subjected to some burden or penalty by reason of the act complained of.118 The reason
why those who challenge the validity of a law or an international agreement are required to allege
the existence of a personal stake in the outcome of the controversy is "to assure the concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."119
The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate as a body
has the requisite standing, but considering that it has not formally filed a pleading to join the suit, as
it merely conveyed to the Supreme Court its sense that EDCA needs the Senate's concurrence to be
valid, petitioners continue to suffer from lack of standing.
In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the
requirement of having to establish a direct and personal interest if they show that the act affects a
public right.120 In arguing that they have legal standing, they claim121 that the case they have filed is a
concerned citizen's suit. But aside from general statements that the petitions involve the protection
of a public right, and that their constitutional rights as citizens would be violated, they fail to make
any specific assertion of a particular public right that would be violated by the enforcement of
EDCA. For their failure to do so, the present petitions cannot be considered by the Court as
citizens' suits that would justify a disregard of the aforementioned requirements.
In claiming that they have legal standing as taxpayers, petitioners122 aver that the implementation of
EDCA would result in the unlawful use of public funds. They emphasize that Article X(1) refers to an
appropriation of funds; and that the agreement entails a waiver of the payment of taxes, fees, and
rentals. During the oral arguments, however, they admitted that the government had not yet
appropriated or actually disbursed public funds for the purpose of implementing the agreement. 123 The
OSG, on the other hand, maintains that petitioners cannot sue as taxpayers.124Respondent explains
that EDCA is neither meant to be a tax measure, nor is it directed at the disbursement of public funds.
A taxpayer's suit concerns a case in which the official act complained of directly involves the illegal
disbursement of public funds derived from taxation.125 Here, those challenging the act must
specifically show that they have sufficient interest in preventing the illegal expenditure of public
money, and that they will sustain a direct injury as a result of the enforcement of the assailed
act.126 Applying that principle to this case, they must establish that EDCA involves the exercise by
Congress of its taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize that a
taxpayers' suit contemplates a situation in which there is already an appropriation or a disbursement
of public funds.128 A reading of Article X(l) of EDCA would show that there has been neither an
appropriation nor an authorization of disbursement of funds. The cited provision reads:
All obligations under this Agreement are subject to the availability of appropriated
funds authorized for these purposes. (Emphases supplied)
This provision means that if the implementation of EDCA would require the disbursement of public
funds, the money must come from appropriated funds that are specifically authorized for this
purpose. Under the agreement, before there can even be a disbursement of public funds, there must
first be a legislative action. Until and unless the Legislature appropriates funds for EDCA, or
unless petitioners can pinpoint a specific item in the current budget that allows expenditure
under the agreement, we cannot at this time rule that there is in fact an appropriation or a
disbursement of funds that would justify the filing of a taxpayers' suit.
Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list representatives have
the standing to challenge the act of the Executive Department, especially if it impairs the
constitutional prerogatives, powers, and privileges of their office. While they admit that there is no
incumbent Senator who has taken part in the present petition, they nonetheless assert that they also
stand to sustain a derivative but substantial injury as legislators. They argue that under the
Constitution, legislative power is vested in both the Senate and the House of Representatives;
consequently, it is the entire Legislative Department that has a voice in determining whether or not
the presence of foreign military should be allowed. They maintain that as members of the Legislature,
they have the requisite personality to bring a suit, especially when a constitutional issue is raised.
infringes their prerogatives as legislators."136 As legislators, they must clearly show that there was a
direct injury to their persons or the institution to which they belong. 137
As correctly argued by respondent, the power to concur in a treaty or an international agreement is
an institutional prerogative granted by the Constitution to the Senate, not to the entire Legislature.
In Pimentel v. Office of the Executive Secretary, this Court did not recognize the standing of one of
the petitioners therein who was a member of the House of Representatives. The petition in that case
sought to compel the transmission to the Senate for concurrence of the signed text of the Statute of
the International Criminal Court. Since that petition invoked the power of the Senate to grant or
withhold its concurrence in a treaty entered into by the Executive Department, only then incumbent
Senator Pimentel was allowed to assert that authority of the Senate of which he was a member.
Therefore, none of the initial petitioners in the present controversy has the standing to
maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act of the Executive for the
following reasons.

The OSG counters130 that petitioners do not have any legal standing to file the suits concerning the In any case, petitioners raise issues involving matters of transcendental importance.
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
Petitioners138 argue that the Court may set aside procedural technicalities, as the present petition
Senate. Accordingly, the OSG argues that in case of an allegation of impairment of that power, the
tackles issues that are of transcendental importance. They point out that the matter before us is about
injured party would be the Senate as an institution or any of its incumbent members, as it is the
the proper exercise of the Executive Department's power to enter into international agreements in
Senate's constitutional function that is allegedly being violated.
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 legal standing of an institution of the Legislature or of any of its Members has already been
recognized by this Court in a number of cases.131 What is in question here is the alleged impairment
The OSG, on the other hand, insists 139 that petitioners cannot raise the mere fact that the present
of the constitutional duties and powers granted to, or the impermissible intrusion upon the domain of,
petitions involve matters of transcendental importance in order to cure their inability to comply with
the Legislature or an institution thereof.132 In the case of suits initiated by the legislators themselves,
the constitutional requirement of standing. Respondent bewails the overuse of "transcendental
this Court has recognized their standing to question the validity of any official action that they claim
importance" as an exception to the traditional requirements of constitutional litigation. It stresses that
infringes the prerogatives, powers, and privileges vested by the Constitution in their office. 133 As aptly
one of the purposes of these requirements is to protect the Supreme Court from unnecessary
explained by Justice Perfecto in Mabanag v. Lopez Vito:134
litigation of constitutional questions.
Being members of Congress, they are even duty bound to see that the latter act within the
In a number of cases,140 this Court has indeed taken a liberal stance towards the requirement of legal
bounds of the Constitution which, as representatives of the people, they should uphold, unless
standing, especially when paramount interest is involved. Indeed, when those who challenge the
they are to commit a flagrant betrayal of public trust. They are representatives of the sovereign people
official act are able to craft an issue of transcendental significance to the people, the Court may
and it is their sacred duty to see to it that the fundamental law embodying the will of the
exercise its sound discretion and take cognizance of the suit. It may do so in spite of the inability of
sovereign people is not trampled upon. (Emphases supplied)
the petitioners to show that they have been personally injured by the operation of a law or any other
government act.
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
While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize that
the exercise of the powers of the institution of which they are members.135 Legislators have the
not every other case, however strong public interest may be, can qualify as an issue of transcendental
standing "to maintain inviolate the prerogatives, powers, and privileges vested by the Constitution
importance. Before it can be impelled to brush aside the essential requisites for exercising its power
in their office and are allowed to sue to question the validity of any official action, which they claim
of judicial review, it must at the very least consider a number of factors: (1) the character of the funds
or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional
or statutory prohibition by the public respondent agency or instrumentality of the government; and (3)
the lack of any other party that has a more direct and specific interest in raising the present
questions.141
An exhaustive evaluation of the memoranda of the parties, together with the oral arguments, shows
that petitioners have presented serious constitutional issues that provide ample justification for the
Court to set aside the rule on standing. The transcendental importance of the issues presented here
is rooted in the Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a
much stricter mechanism required before foreign military troops, facilities, or bases may be allowed
in the country. The DFA has already confirmed to the U.S. Embassy that "all internal requirements
of the Philippines x x x have already been complied with." 142 It behooves the Court in this instance to
take a liberal stance towards the rule on standing and to determine forthwith whether there was grave
abuse of discretion on the part of the Executive Department.
We therefore rule that this case is a proper subject for judicial review.
B. Whether the President may enter into an executive agreement on foreign military
bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution, as well as
with existing laws and treaties
Issues B and C shall be discussed together infra.
1. The role of the President as the executor of the law includes the duty to defend the State,
for which purpose he may use that power in the conduct of foreign relations
Historically, the Philippines has mirrored the division of powers in the U.S. government. When the
Philippine government was still an agency of the Congress of the U.S., it was as an agent entrusted
with powers categorized as executive, legislative, and judicial, and divided among these three great
branches.143 By this division, the law implied that the divided powers cannot be exercised except by
the department given the power.144
This divide continued throughout the different versions of the Philippine Constitution and specifically
vested the supreme executive power in the Governor-General of the Philippines,145 a position
inherited by the President of the Philippines when the country attained independence. One of the
principal functions of the supreme executive is the responsibility for the faithful execution of the laws
as embodied by the oath of office.146 The oath of the President prescribed by the 1987 Constitution
reads thus:
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as
President (or Vice-President or Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the
Nation. So help me God. (In case of affirmation, last sentence will be omitted.)147 (Emphases supplied)
This Court has interpreted the faithful execution clause as an obligation imposed on the President,
and not a separate grant of power.148 Section 1 7, Article VII of the Constitution, expresses this duty
in no uncertain terms and includes it in the provision regarding the President's power of control over
the executive department, viz:
The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not explicitly require this oath from
the President. In the 1973 Constitution, for instance, the provision simply gives the President control
over the ministries.149 A similar language, not in the form of the President's oath, was present in the
1935 Constitution, particularly in the enumeration of executive functions. 150 By 1987, executive power
was codified not only in the Constitution, but also in the Administrative Code:151
SECTION 1. Power of Control. - The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied)
Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is
intimately related to the other executive functions. These functions include the faithful execution of
the law in autonomous regions;152 the right to prosecute crimes;153 the implementation of transportation
projects;154 the duty to ensure compliance with treaties, executive agreements and executive
orders;155 the authority to deport undesirable aliens; 156 the conferment of national awards under the
President's jurisdiction;157 and the overall administration and control of the executive department.158
These obligations are as broad as they sound, for a President cannot function with crippled hands,
but must be capable of securing the rule of law within all territories of the Philippine Islands and be
empowered to do so within constitutional limits. Congress cannot, for instance, limit or take over the
President's power to adopt implementing rules and regulations for a law it has enacted. 159
More important, this mandate is self-executory by virtue of its being inherently executive in
nature.160 As Justice Antonio T. Carpio previously wrote,161
[i]f the rules are issued by the President in implementation or execution of self-executory
constitutional powers vested in the President, the rule-making power of the President is not a
delegated legislative power. The most important self-executory constitutional power of the President
is the President's constitutional duty and mandate to "ensure that the laws be faithfully executed."
The rule is that the President can execute the law without any delegation of power from the
legislature.
The import of this characteristic is that the manner of the President's execution of the law,
even if not expressly granted by the law, is justified by necessity and limited only by law,
since the President must "take necessary and proper steps to carry into execution the
law."162 Justice George Malcolm states this principle in a grand manner:163
The executive should be clothed with sufficient power to administer efficiently the affairs of state. He
should have complete control of the instrumentalities through whom his responsibility is discharged.
It is still true, as said by Hamilton, that "A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad execution; and a government ill
executed, whatever it may be in theory, must be in practice a bad government." The mistakes of
State governments need not be repeated here.
xxxx
Every other consideration to one side, this remains certain - The Congress of the United States
clearly intended that the Governor-General's power should be commensurate with his responsibility.
The Congress never intended that the Governor-General should be saddled with the responsibility
of administering the government and of executing the laws but shorn of the power to do so. The
interests of the Philippines will be best served by strict adherence to the basic principles of
constitutional government.
In light of this constitutional duty, it is the President's prerogative to do whatever is legal and
necessary for Philippine defense interests. It is no coincidence that the constitutional provision on
the faithful execution clause was followed by that on the President's commander-in-chief
powers,164 which are specifically granted during extraordinary events of lawless violence, invasion, or
rebellion. And this duty of defending the country is unceasing, even in times when there is no state
of lawlesss violence, invasion, or rebellion. At such times, the President has full powers to ensure
the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the faithful-execution clause of the
Constitution to do nothing when the call of the moment requires increasing the military's defensive
capabilities, which could include forging alliances with states that hold a common interest with the
Philippines or bringing an international suit against an offending state.
The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting
Opinion as the beginning of a "patent misconception."165 His dissent argues that this approach taken
in analyzing the President's role as executor of the laws is preceded by the duty to preserve and
defend the Constitution, which was allegedly overlooked. 166
In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the
analysis, if read holistically and in context. The concept that the President cannot function with
crippled hands and therefore can disregard the need for Senate concurrence in treaties 167 was never
expressed or implied. Rather, the appropriate reading of the preceding analysis shows that the point
being elucidated is the reality that the President's duty to execute the laws and protect the Philippines
is inextricably interwoven with his foreign affairs powers, such that he must resolve issues imbued
with both concerns to the full extent of his powers, subject only to the limits supplied by law. In other
words, apart from an expressly mandated limit, or an implied limit by virtue of incompatibility, the
manner of execution by the President must be given utmost deference. This approach is not different
from that taken by the Court in situations with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the President authority to bypass
constitutional safeguards and limits. In fact, it specifies what these limitations are, how these
limitations are triggered, how these limitations function, and what can be done within the sphere of
constitutional duties and limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the foreign
relations power of the President should not be interpreted in isolation.168 The analysis itself
demonstrates how the foreign affairs function, while mostly the President's, is shared in several
instances, namely in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII
on foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on
the judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties and international
agreements entered into prior to the Constitution and on the presence of foreign military troops,
bases, or facilities.
In fact, the analysis devotes a whole subheading to the relationship between the two major
presidential functions and the role of the Senate in it.
This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not
novel to the Court. The President's act of treating EDCA as an executive agreement is not the
principal power being analyzed as the Dissenting Opinion seems to suggest. Rather, the preliminary
analysis is in reference to the expansive power of foreign affairs. We have long treated this power as
something the Courts must not unduly restrict. As we stated recently in Vinuya v. Romulo:
To be sure, not all cases implicating foreign relations present political questions, and courts certainly
possess the authority to construe or invalidate treaties and executive agreements. However, the
question whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department
has already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the Executive
Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that "[t]he
President is the sole organ of the nation in its external relations, and its sole representative with
foreign relations."
It is quite apparent that if, in the maintenance of our international relations,
embarrassment - perhaps serious embarrassment - is to be avoided and success for
our aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory restriction which
would not be admissible where domestic affairs alone involved. Moreover, he,
not Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has his confidential
 sources of information. He has his agents in the form of diplomatic, consular and
other officials ....
This ruling has been incorporated in our jurisprudence through Bavan v. Executive
Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best
articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of complexities and consequences,
sometimes with life and death significance to the nation especially in times of war. It
can only be entrusted to that department of government which can act on the basis
of the best available information and can decide with decisiveness .... It is also the
President who possesses the most comprehensive and the most confidential
information about foreign countries for our diplomatic and consular officials regularly
brief him on meaningful events all over the world. He has also unlimited access to
ultra-sensitive military intelligence data. In fine, the presidential role in foreign
affairs is dominant and the President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.169 (Emphases supplied)
Understandably, this Court must view the instant case with the same perspective and understanding,
knowing full well the constitutional and legal repercussions of any judicial overreach.
2. The plain meaning of the Constitution prohibits the entry of foreign military bases, troops
or facilities, except by way of a treaty concurred in by the Senate - a clear limitation on the
President's dual role as defender of the State and as sole authority in foreign relations.
Despite the President's roles as defender of the State and sole authority in foreign relations, the 1987
Constitution expressly limits his ability in instances when it involves the entry of foreign military bases,
troops or facilities. The initial limitation is found in Section 21 of the provisions on the Executive
Department: "No treaty or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the Senate." The specific limitation is given by Section 25 of
the Transitory Provisions, the full text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State.
It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic
requirements of a treaty under Section 21 of Article VII. This means that both provisions must be
read as additional limitations to the President's overarching executive function in matters of defense
and foreign relations.
3. The President, however, may enter into an executive agreement on foreign military bases,
troops, or facilities, if (a) it is not the instrument that allows the presence of foreign military
bases, troops, or facilities; or (b) it merely aims to implement an existing law or treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in
a national referendum held for that purpose, and recognized as a treaty by the other contracting
State. (Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must be in the form of a "treaty" duly concurred
in by the Senate. They stress that the Constitution is unambigous in mandating the transmission to
the Senate of all international agreements concluded after the expiration of the MBA in 1991 -
agreements that concern the presence of foreign military bases, troops, or facilities in the country.
Accordingly, petitioners maintain that the Executive Department is not given the choice to conclude
agreements like EDCA in the form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its members - with 1
against and 2 abstaining - says in SR 105171 that EDCA must be submitted to the Senate in the form
of a treaty for concurrence by at least two-thirds of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII, Section 25) to
support its position. Compared with the lone constitutional provision that the Office of the Solicitor
General (OSG) cites, which is Article XVIII, Section 4(2), which includes the constitutionality of
"executive agreement(s)" among the cases subject to the Supreme Court's power of judicial review,
the Constitution clearly requires submission of EDCA to the Senate. Two specific provisions versus
one general provision means that the specific provisions prevail. The term "executive agreement" is
"a term wandering alone in the Constitution, bereft of provenance and an unidentified constitutional
mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even added that the
MDT, which the Executive claims to be partly implemented through EDCA, is already obsolete.
There are two insurmountable obstacles to this Court's agreement with SR 105, as well as with the
comment on interpellation made by Senator Santiago.
First, the concept of "executive agreement" is so well-entrenched in this Court's pronouncements on
the powers of the President. When the Court validated the concept of "executive agreement," it did
so with full knowledge of the Senate's role in concurring in treaties. It was aware of the problematique
of distinguishing when an international agreement needed Senate concurrence for validity, and when
it did not; and the Court continued to validate the existence of "executive agreements" even after the
1987 Constitution.172 This follows a long line of similar decisions upholding the power of the President
to enter into an executive agreement.173
Second, the MDT has not been rendered obsolescent, considering that as late as 2009, 174 this Court
continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the conclusion
that it applies only to a proposed agreement between our government and a foreign government,
whereby military bases, troops, or facilities of such foreign government would be "allowed" or would
"gain entry" Philippine territory.
Note that the provision "shall not be allowed" is a negative injunction. This wording signifies that the
President is not authorized by law to allow foreign military bases, troops, or facilities to enter the
Philippines, except under a treaty concurred in by the Senate. Hence, the constitutionally restricted
authority pertains to the entry of the bases, troops, or facilities, and not to the activities to be done
after entry.
Under the principles of constitutional construction, of paramount consideration is the plain meaning
of the language expressed in the Constitution, or the verba legis rule.175 It is presumed that the
provisions have been carefully crafted in order to express the objective it seeks to attain. 176 It is
incumbent upon the Court to refrain from going beyond the plain meaning of the words used in the
Constitution. It is presumed that the framers and the people meant what they said when they said it,
and that this understanding was reflected in the Constitution and understood by the people in the
way it was meant to be understood when the fundamental law was ordained and promulgated. 177 As
this Court has often said:
We look to the language of the document itself in our search for its meaning. We do not of course
stop there, but that is where we begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case the significance
thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in common use.
What it says according to the text of the provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that the framers and the people mean
what they say. Thus, these are the cases where the need for construction is reduced to a
minimum.178(Emphases supplied)
It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that
further construction must be done to elicit its meaning.179 In Ang Bagong Bayani-OFW v. Commission
on Elections,180 we reiterated this guiding principle:
it [is] safer to construe the Constitution from what appears upon its face. The proper
interpretation therefore depends more on how it was understood by the people adopting it than
in the framers' understanding thereof. (Emphases supplied)
The effect of this statement is surprisingly profound, for, if taken literally, the phrase "shall not be
allowed in the Philippines" plainly refers to the entry of bases, troops, or facilities in the country.
The Oxford English Dictionary defines the word "allow" as a transitive verb that means "to permit,
enable"; "to give consent to the occurrence of or relax restraint on (an action, event, or activity)"; "to
consent to the presence or attendance of (a person)"; and, when with an adverbial of place, "to permit
(a person or animal) to go, come, or be in, out, near, etc." 181 Black's Law Dictionary defines the term
as one that means "[t]o grant, approve, or permit."182
The verb "allow" is followed by the word "in," which is a preposition used to indicate "place or position
in space or anything having material extension: Within the limits or bounds of, within (any place or
thing)."183 That something is the Philippines, which is the noun that follows.
It is evident that the constitutional restriction refers solely to the initial entry of the foreign military
bases, troops, or facilities. Once entry is authorized, the subsequent acts are thereafter subject only
to the limitations provided by the rest of the Constitution and Philippine law, and not to the Section
25 requirement of validity through a treaty.
The VFA has already allowed the entry of troops in the Philippines. This Court stated in Lim v.
Executive Secretary:
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the
word "activities" arose from accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance to protect the nation's marine resources,
sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action
projects such as the building of school houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical
to assume that "Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise,"
falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both
the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-
related activities -as opposed to combat itself-such as the one subject of the instant petition, are
indeed authorized.184 (Emphasis supplied)
Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign military
troops in the Philippines,185 readily implying the legality of their initial entry into the country.
The OSG emphasizes that EDCA can be in the form of an executive agreement, since it merely
involves "adjustments in detail" in the implementation of the MDT and the VFA.186 It points out that
there are existing treaties between the Philippines and the U.S. that have already been concurred in
by the Philippine Senate and have thereby met the requirements of the Constitution under Section
25. Because of the status of these prior agreements, respondent emphasizes that EDCA need not
be transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba
legis construction to the words of Article XVIII, Section 25. 187 It claims that the provision is "neither
plain, nor that simple."188 To buttress its disagreement, the dissent states that the provision refers to
a historical incident, which is the expiration of the 1947 MBA. 189 Accordingly, this position requires
questioning the circumstances that led to the historical event, and the meaning of the terms under
Article XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis is not inapplicable just
because a provision has a specific historical context. In fact, every provision of the Constitution has
a specific historical context. The purpose of constitutional and statutory construction is to set tiers of
interpretation to guide the Court as to how a particular provision functions. Verba legis is of
paramount consideration, but it is not the only consideration. As this Court has often said:
We look to the language of the document itself in our search for its meaning. We do not of course
stop there, but that is where we begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case the significance
thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in common use.
What it says according to the text of the provision to be construed compels acceptance and negates
the power of the courts to alter it, based on the postulate that the framers and the people mean
what they say. Thus, these are the cases where the need for construction is reduced to a
minimum.190(Emphases supplied)
As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the phrase
being construed is "shall not be allowed in the Philippines" and not the preceding one referring to
"the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities." It is explicit
in the wording of the provision itself that any interpretation goes beyond the text itself and into the
discussion of the framers, the context of the Constitutional Commission's time of drafting, and the
history of the 1947 MBA. Without reference to these factors, a reader would not understand those
terms. However, for the phrase "shall not be allowed in the Philippines," there is no need for such
reference. The law is clear. No less than the Senate understood this when it ratified the VFA.
4. The President may generally enter into executive agreements subject to limitations defined
by the Constitution and may be in furtherance of a treaty already concurred in by the Senate.
We discuss in this section why the President can enter into executive agreements.
It would be helpful to put into context the contested language found in Article XVIII, Section 25. Its
more exacting requirement was introduced because of the previous experience of the country when
its representatives felt compelled to consent to the old MBA. 191 They felt constrained to agree to the
MBA in fulfilment of one of the major conditions for the country to gain independence from the
U.S.192 As a result of that experience, a second layer of consent for agreements that allow military
bases, troops and facilities in the country is now articulated in Article XVIII of our present Constitution.
This second layer of consent, however, cannot be interpreted in such a way that we completely ignore
the intent of our constitutional framers when they provided for that additional layer, nor the vigorous
statements of this Court that affirm the continued existence of that class of international agreements
called "executive agreements."
The power of the President to enter into binding executive agreements without Senate concurrence
is already well-established in this jurisdiction.193 That power has been alluded to in our present and
past Constitutions,194 in various statutes,195 in Supreme Court decisions,196 and during the deliberations
of the Constitutional Commission.197 They cover a wide array of subjects with varying scopes and
purposes,198 including those that involve the presence of foreign military forces in the country. 199
As the sole organ of our foreign relations 200 and the constitutionally assigned chief architect of our
foreign policy,201the President is vested with the exclusive power to conduct and manage the country's
interface with other states and governments. Being the principal representative of the Philippines,
the Chief Executive speaks and listens for the nation; initiates, maintains, and develops diplomatic
relations with other states and governments; negotiates and enters into international agreements;
promotes trade, investments, tourism and other economic relations; and settles international disputes
with other states.202
As previously discussed, this constitutional mandate emanates from the inherent power of the
President to enter into agreements with other states, including the prerogative to
conclude binding executive agreements that do not require further Senate concurrence. The
existence of this presidential power203 is so well-entrenched that Section 5(2)(a), Article VIII of the
Constitution, even provides for a check on its exercise. As expressed below, executive agreements
are among those official governmental acts that can be the subject of this Court's power of judicial
review:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is in question.
(Emphases supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as
"international agreements embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangements of a more or less temporary
nature."204 In Bayan Muna v. Romulo, this Court further clarified that executive agreements can cover
a wide array of subjects that have various scopes and purposes.205 They are no longer limited to the
traditional subjects that are usually covered by executive agreements as identified in Eastern Sea
Trading. The Court thoroughly discussed this matter in the following manner:
The categorization of subject matters that may be covered by international
agreementsmentioned in Eastern Sea Trading is not cast in stone. x x x.
As may be noted, almost half a century has elapsed since the Court rendered its decision
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex
and the domain of international law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and
nuclear safety, among others. Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international agreement format
would be convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:
. . . It would be useless to undertake to discuss here the large variety of executive agreements
as such concluded from time to time. Hundreds of executive agreements, other than those entered
into under the trade-agreement act, have been negotiated with foreign governments. . . . They cover
such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the
admission of civil air craft, custom matters and commercial relations generally, international claims,
postal matters, the registration of trademarks and copyrights, etc .... (Emphases Supplied)
One of the distinguishing features of executive agreements is that their validity and effectivity are not
affected by a lack of Senate concurrence.206 This distinctive feature was recognized as early as
in Eastern Sea Trading (1961), viz:
Treaties are formal documents which require ratification with the approval of two-thirds of the
Senate. Executive agreements become binding through executive action without the need of
a vote by the Senate or by Congress.
xxxx
[T]he right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest days
of our history we have entered into executive agreements covering such subjects as commercial and
consular relations, most-favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts. (Emphases Supplied)
That notion was carried over to the present Constitution. In fact, the framers specifically deliberated
on whether the general term "international agreement" included executive agreements, and whether
it was necessary to include an express proviso that would exclude executive agreements from the
requirement of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the
Court's ruling in Eastern Sea Trading, the Constitutional Commission members ultimately decided
that the term "international agreements" as contemplated in Section 21, Article VII, does not include
executive agreements, and that a proviso is no longer needed. Their discussion is reproduced
below:207
MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have
retained the words "international agreement" which I think is the correct judgment on the matter
because an international agreement is different from a treaty. A treaty is a contract between parties
which is in the nature of international agreement and also a municipal law in the sense that the people
are bound. So there is a conceptual difference. However, I would like to be clarified if the
international agreements include executive agreements.
MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations
stipulate the conditions which are necessary for the agreement or whatever it may be to become
valid or effective as regards the parties.
MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive
agreement? According to common usage, there are two types of executive agreement: one is
purely proceeding from an executive act which affects external relations independent of the
legislative and the other is an executive act in pursuance of legislative authorization. The first
kind might take the form of just conventions or exchanges of notes or protocol while the other,
which would be pursuant to the legislative authorization, may be in the nature of commercial
agreements.
MR. CONCEPCION: Executive agreements are generally made to implement a treaty already
enforced or to determine the details for the implementation of the treaty. We are speaking of
executive agreements, not international agreements.
MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive
agreement which is just protocol or an exchange of notes and this would be in the nature of
reinforcement of claims of a citizen against a country, for example.
MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the
Philippines is concerned.
MS. AQUINO: It is my humble submission that we should provide, unless the Committee explains
to us otherwise, an explicit proviso which would except executive agreements from
the requirement of concurrence of two-thirds of the Members of the Senate. Unless I am
enlightened by the Committee I propose that tentatively, the sentence should read. "No treaty or
international agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and effective."
FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea Trading]
might help clarify this:
The right of the executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest days
of our history, we have entered into executive agreements covering such subjects as commercial
and consular relations, most favored nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of this has never been
seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been concluded by the executive of
various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International
agreements involving political issues or changes of national policy and those involving
international agreements of a permanent character usually take the form of treaties. But
international agreements embodying adjustments of detail, carrying out well established
national policies and traditions and those involving arrangements of a more or less temporary
nature usually take the form of executive agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say international agreements which
need concurrence by at least two-thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are executive agreements
essentially but which are proceeding from the authorization of Congress. If that is our understanding,
then I am willing to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent
concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive
agreements" and that would make unnecessary any explicit proviso on the matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that
these executive agreements must rely on treaties. In other words, there must first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the
implementation of treaties, details of which do not affect the sovereignty of the State.
MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be
considered permanent? What would be the measure of permanency? I do not conceive of a treaty
that is going to be forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement
should be included in a provision of the Constitution requiring the concurrence of Congress.
MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If
the executive agreement partakes of the nature of a treaty, then it should also be included.
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the
Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international
agreements" would include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore, that as
far as the Committee is concerned, the term "international agreements" does not include the
term "executive agreements" as read by the Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the requirements under Section 21 was again
recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under the
aegis of the present Constitution, quoted Eastern Sea Trading in reiterating that executive
agreements are valid and binding even without the concurrence of the Senate.
Executive agreements may dispense with the requirement of Senate concurrence because of the
legal mandate with which they are concluded. As culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court Decisions, and works of noted scholars,208 executive
agreements merely involve arrangements on the implementation of existing policies, rules, laws, or
agreements. They are concluded (1) to adjust the details of a treaty; 209 (2) pursuant to or upon
confirmation by an act of the Legislature;210 or (3) in the exercise of the President's independent
powers under the Constitution.211 The raison d'etre of executive agreements hinges
on prior constitutional or legislative authorizations.
The special nature of an executive agreement is not just a domestic variation in international
agreements. International practice has accepted the use of various forms and designations of
international agreements, ranging from the traditional notion of a treaty - which connotes a formal,
solemn instrument - to engagements concluded in modem, simplified forms that no longer
necessitate ratification.212 An international agreement may take different forms: treaty, act, protocol,
agreement, concordat, compromis d'arbitrage, convention, covenant, declaration, exchange of
notes, statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some
other form.213 Consequently, under international law, the distinction between a treaty and an
international agreement or even an executive agreement is irrelevant for purposes of determining
international rights and obligations.
However, this principle does not mean that the domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an optional constitutional directive.
There remain two very important features that distinguish treaties from executive agreements and
translate them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity
of executive agreements under serious question for the main function of the Executive is to enforce
the Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance
of these rules.214 In turn, executive agreements cannot create new international obligations that are
not expressly allowed or reasonably implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate215 unlike executive agreements, which are solely
executive actions.216Because of legislative participation through the Senate, a treaty is regarded as
being on the same level as a statute.217 If there is an irreconcilable conflict, a later law or treaty takes
precedence over one that is prior.218 An executive agreement is treated differently. Executive
agreements that are inconsistent with either a law or a treaty are considered ineffective.219 Both types
of international agreement are nevertheless subject to the supremacy of the Constitution.220
This rule does not imply, though, that the President is given carte blanche to exercise this discretion.
Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this
power must still be exercised within the context and the parameters set by the Constitution, as well
as by existing domestic and international laws. There are constitutional provisions that restrict or limit
the President's prerogative in concluding international agreements, such as those that involve the
following:
a. The policy of freedom from nuclear weapons within Philippine 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 Congress223
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be
previously concurred in by the Monetary Board224
e. The authorization of the presence of foreign military bases, troops, or facilities in the
country must be in the form of a treaty duly concurred in by the Senate.225
f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is
required, should the form of the government chosen be a treaty.
5. The President had the choice to enter into EDCA by way of an executive agreement or a
treaty.
No court can tell the President to desist from choosing an executive agreement over a treaty to
embody an international agreement, unless the case falls squarely within Article VIII, Section 25.
As can be gleaned from the debates among the members of the Constitutional Commission, they
were aware that legally binding international agreements were being entered into by countries in
forms other than a treaty. At the same time, it is clear that they were also keen to preserve the concept
of "executive agreements" and the right of the President to enter into such agreements.
What we can glean from the discussions of the Constitutional Commissioners is that they understood
the following realities:
1. Treaties, international agreements, and executive agreements are all constitutional
manifestations of the conduct of foreign affairs with their distinct legal characteristics.
a. Treaties are formal contracts between the Philippines and other States-parties,
which are in the nature of international agreements, and also of municipal laws in the
sense of their binding nature.226
b. International agreements are similar instruments, the provisions of which may
require the ratification of a designated number of parties thereto. These agreements
involving political issues or changes in national policy, as well as those involving
international agreements of a permanent character, usually take the form of treaties.
They may also include commercial agreements, which are executive agreements
essentially, but which proceed from previous authorization by Congress, thus
dispensing with the requirement of concurrence by the Senate.227
c. Executive agreements are generally intended to implement a treaty already
enforced or to determine the details of the implementation thereof that do not affect
the sovereignty of the State.228
2. Treaties and international agreements that cannot be mere executive agreements must,
by constitutional decree, be concurred in by at least two-thirds of the Senate.
3. However, an agreement - the subject of which is the entry of foreign military troops, bases,
or facilities - is particularly restricted. The requirements are that it be in the form of a treaty
 concurred in by the Senate; that when Congress so requires, it be ratified by a majority of the
votes cast by the people in a national referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.
4. Thus, executive agreements can continue to exist as a species of international
agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her constitutional
authority and discretion when she chose to enter into the RP-U.S. Non-Surrender Agreement in the
form of an executive agreement, instead of a treaty, and in ratifying the agreement without Senate
concurrence. The Court en banc discussed this intrinsic presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the
nature of a treaty; hence, it must be duly concurred in by the Senate. x x x x. Pressing its point,
petitioner submits that the subject of the Agreement does not fall under any of the subject-categories
that xx x may be covered by an executive agreement, such as commercial/consular relations, most-
favored nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and settlement of claims.
The categorization of subject matters that may be covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form of agreement is
the parties' intent and desire to craft an international agreement in the form they so wish to
further their respective interests. Verily, the matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact that - save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is required, the Constitution
does not classify any subject, like that involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence
of the Senate by a vote defined therein to complete the ratification process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in the external affairs of the
nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or
ratify binding executive agreements has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the end of the day, the President
- by ratifying, thru her deputies, the non-surrender agreement - did nothing more than
discharge a constitutional duty and exercise a prerogative that pertains to her
office. (Emphases supplied)
Indeed, in the field of external affairs, the President must be given a larger measure of authority and
wider discretion, subject only to the least amount of checks and restrictions under the
Constitution.229 The rationale behind this power and discretion was recognized by the Court in Vinuya
v. Executive Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International
Agreements and its Ratification, thus, correctly reflected the inherent powers of the President when
it stated that the DFA "shall determine whether an agreement is an executive agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an
international agreement should be in the form of a treaty or an executive agreement, save in cases
in which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional
powers and prerogatives granted to the President in the field of foreign affairs, the task of the Court
is to determine whether the international agreement is consistent with the applicable limitations.
6. Executive agreements may cover the matter of foreign military forces if it merely involves
detail adjustments.
The practice of resorting to executive agreements in adjusting the details of a law or a treaty that
already deals with the presence of foreign military forces is not at all unusual in this jurisdiction. In
fact, the Court has already implicitly acknowledged this practice in Lim v. Executive Secretary.231 In
that case, the Court was asked to scrutinize the constitutionality of the Terms of Reference of
the Balikatan 02-1 joint military exercises, which sought to implement the VFA. Concluded in the form
of an executive agreement, the Terms of Reference detailed the coverage of the term "activities"
mentioned in the treaty and settled the matters pertaining to the construction of temporary structures
for the U.S. troops during the activities; the duration and location of the exercises; the number of
participants; and the extent of and limitations on the activities of the U.S. forces. The Court upheld
the Terms of Reference as being consistent with the VFA. It no longer took issue with the fact that
the Balikatan Terms of Reference was not in the form of a treaty concurred in by the Senate, even if
it dealt with the regulation of the activities of foreign military forces on Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive agreement in an
attempt to adjust the details of a provision of the VFA. The Philippines and the U.S. entered into the
Romulo-Kenney Agreement, which undertook to clarify the detention of a U.S. Armed Forces
member, whose case was pending appeal after his conviction by a trial court for the crime of rape.
In testing the validity of the latter agreement, the Court precisely alluded to one of the inherent
limitations of an executive agreement: it cannot go beyond the terms of the treaty it purports to
implement. It was eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the
VFA, since the former was squarely inconsistent with a provision in the treaty requiring that the
detention be "by Philippine authorities." Consequently, the Court ordered the Secretary of Foreign
Affairs to comply with the VFA and "forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided in Art. V, Sec.
10 of the VFA. "233
Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in
resolving the present controversy:
1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be
fulfilled by the international agreement allowing the presence of foreign military bases, troops,
or facilities in the Philippines: (a) the agreement must be in the form of a treaty, and (b) it
must be duly concurred in by the Senate.
2. If the agreement is not covered by the above situation, then the President may choose the
form of the agreement (i.e., either an executive agreement or a treaty), provided that the
agreement dealing with foreign military bases, troops, or facilities is not the principal
agreement that first allows their entry or presence in the Philippines.
3. The executive agreement must not go beyond the parameters, limitations, and standards
set by the law and/or treaty that the former purports to implement; and must not unduly
expand the international obligation expressly mentioned or necessarily implied in the law or
treaty.
4. The executive agreement must be consistent with the Constitution, as well as with existing
laws and treaties.
In light of the President's choice to enter into EDCA in the form of an executive agreement,
respondents carry the burden of proving that it is a mere implementation of existing laws and treaties
concurred in by the Senate. EDCA must thus be carefully dissected to ascertain if it remains within
the legal parameters of a valid executive agreement.
7. EDCA is consistent with the content, purpose, and framework of the MDT and the VFA
The starting point of our analysis is the rule that "an executive agreement xx x may not be used to
amend a treaty."234 In Lim v. Executive Secretary and in Nicolas v. Romulo, the Court approached the
question of the validity of executive agreements by comparing them with the general framework and
the specific provisions of the treaties they seek to implement.
In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the
framework of the treaty antecedents to which the Philippines bound itself,"235 i.e., the MDT and the
VFA. The Court proceeded to examine the extent of the term "activities" as contemplated in Articles
1236 and II237 of the VFA. It later on found that the term "activities" was deliberately left undefined and
ambiguous in order to permit "a wide scope of undertakings subject only to the approval of the
Philippine government"238 and thereby allow the parties "a certain leeway in negotiation."239 The Court
eventually ruled that the Terms of Reference fell within the sanctioned or allowable activities,
especially in the context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of the VFA on
custody and detention to ascertain the validity of the Romulo-Kenney Agreement.240 It eventually
found that the two international agreements were not in accord, since the Romulo-Kenney Agreement
had stipulated that U.S. military personnel shall be detained at the U.S. Embassy Compound and
guarded by U.S. military personnel, instead of by Philippine authorities. According to the Court, the
parties "recognized the difference between custody during the trial and detention after
conviction."241 Pursuant to Article V(6) of the VFA, the custody of a U.S. military personnel resides
with U.S. military authorities during trial. Once there is a finding of guilt, Article V(l0) requires that the
confinement or detention be "by Philippine authorities."
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or
amends the VFA"242and follows with an enumeration of the differences between EDCA and the VFA.
While these arguments will be rebutted more fully further on, an initial answer can already be given
to each of the concerns raised by his dissent.
The first difference emphasized is that EDCA does not only regulate visits as the VFA does, but
allows temporary stationing on a rotational basis of U.S. military personnel and their contractors in
physical locations with permanent facilities and pre-positioned military materiel.
This argument does not take into account that these permanent facilities, while built by U.S. forces,
are to be owned by the Philippines once constructed.243 Even the VFA allowed construction for the
benefit of U.S. forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows the prepositioning of military
materiel, which can include various types of warships, fighter planes, bombers, and vessels, as well
as land and amphibious vehicles and their corresponding ammunition. 244
However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft to be
brought into the country. Articles VII and VIII of the VFA contemplates that U.S. equipment, materials,
supplies, and other property are imported into or acquired in the Philippines by or on behalf of the
U.S. Armed Forces; as are vehicles, vessels, and aircraft operated by or for U.S. forces in connection
with activities under the VFA. These provisions likewise provide for the waiver of the specific duties,
taxes, charges, and fees that correspond to these equipment.
The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the
entry of troops for training exercises, whereas EDCA allows the use of territory for launching military
and paramilitary operations conducted in other states.245 The dissent of Justice Teresita J. Leonardo-
De Castro also notes that VFA was intended for non-combat activides only, whereas the entry and
activities of U.S. forces into Agreed Locations were borne of military necessity or had a martial
character, and were therefore not contemplated by the VFA. 246
This Court's jurisprudence however established in no uncertain terms that combat-related activities,
as opposed to actual combat, were allowed under the MDT and VFA, viz:
Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that
combat-related activities as opposed to combat itself such as the one subject of the instant petition,
are indeed authorized.247
Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the intent
of the VFA since EDCA's combat-related components are allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and
EDCA deal with the presence of U.S. forces within the Philippines, but make no mention of being
platforms for activity beyond Philippine territory. While it may be that, as applied, military operations
under either the VFA or EDCA would be carried out in the future the scope of judicial review does
not cover potential breaches of discretion but only actual occurrences or blatantly illegal provisions.
Hence, we cannot invalidate EDCA on the basis of the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the
VFA or the MDT: Agreed Locations, Contractors, Pre-positioning, and Operational Control.248
As previously mentioned, these points shall be addressed fully and individually in the latter analysis
of EDCA's provisions. However, it must already be clarified that the terms and details used by an
implementing agreement need not be found in the mother treaty. They must be sourced from the
authority derived from the treaty, but are not necessarily expressed word-for-word in the mother
treaty. This concern shall be further elucidated in this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions
that may be construed as a restriction on or modification of obligations found in existing statues,
including the jurisdiction of courts, local autonomy, and taxation. Implied in this argument is that
EDCA contains such restrictions or modifications.249
This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and
EDCA ensure Philippine jurisdiction in all instances contemplated by both agreements, with the
exception of those outlined by the VFA in Articles III-VI. In the VFA, taxes are clearly waived whereas
in EDCA, taxes are assumed by the government as will be discussed later on. This fact does not,
therefore, produce a diminution of jurisdiction on the part of the Philippines, but rather a recognition
of sovereignty and the rights that attend it, some of which may be waived as in the cases under
Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be compared with those of the MDT
and the VFA, which are the two treaties from which EDCA allegedly draws its validity.
"Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S.
personnel and (2) U.S. contractors
The OSG argues250 that EDCA merely details existing policies under the MDT and the VFA. It explains
that EDCA articulates the principle of defensive preparation embodied in Article II of the MDT; and
seeks to enhance the defensive, strategic, and technological capabilities of both parties pursuant to
the objective of the treaty to strengthen those capabilities to prevent or resist a possible armed attack.
Respondent also points out that EDCA simply implements Article I of the VFA, which already allows
the entry of U.S. troops and personnel into the country. Respondent stresses this Court's recognition
in Lim v. Executive Secretary that U.S. troops and personnel are authorized to conduct activities that
promote the goal of maintaining and developing their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT. According
to them, the treaty does not specifically authorize the entry of U.S. troops in the country in order to
maintain and develop the individual and collective capacities of both the Philippines and the U.S. to
resist an armed attack. They emphasize that the treaty was concluded at a time when there was as
yet no specific constitutional prohibition on the presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the
agreement covers only short-term or temporary visits of U.S. troops "from time to time" for the
specific purpose of combined military exercises with their Filipino counterparts. They stress that, in
contrast, U.S. troops are allowed under EDCA to perform activities beyond combined military
exercises, such as those enumerated in Articles 111(1) and IV(4) thereof. Furthermore, there is some
degree of permanence in the presence of U.S. troops in the country, since the effectivity of EDCA is
continuous until terminated. They proceed to argue that while troops have a "rotational" presence,
this scheme in fact fosters their permanent presence.
a. Admission of U.S. military and civilian personnel into Philippine territory is already allowed under
the VFA
We shall first deal with the recognition under EDCA of the presence in the country of three distinct
classes of individuals who will be conducting different types of activities within the Agreed Locations:
(1) U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S. contractors. The agreement refers
to them as follows:
"United States personnel" means United States military and civilian personnel temporarily in
the territory of the Philippines in connection with activities approved by the Philippines, as those
terms are defined in the VFA.252
"United States forces" means the entity comprising United States personnel and all property,
equipment, and materiel of the United States Armed Forces present in the territory of the
Philippines.253
"United States contractors" means companies and firms, and their employees, under contract
or subcontract to or on behalf of the United States Department of Defense. United States
contractors are not included as part of the definition of United States personnel in this Agreement,
including within the context of the VFA.254
United States forces may contract for any materiel, supplies, equipment, and
services (including construction) to be furnished or undertaken in the territory of the Philippines
without restriction as to choice of contractor, supplier, or person who provides such materiel,
supplies, equipment, or services. Such contracts shall be solicited, awarded, and administered in
accordance with the laws and regulations of the United States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal with
the entry into the country of U.S. personnel and contractors per se. While Articles I(l)(b)256 and
II(4)257 speak of "the right to access and use" the Agreed Locations, their wordings indicate the
presumption that these groups have already been allowed entry into Philippine territory, for which,
unlike the VFA, EDCA has no specific provision. Instead, Article II of the latter simply alludes to the
VFA in describing U.S. personnel, a term defined under Article I of the treaty as follows:
As used in this Agreement, "United States personnel" means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the Philippine
Government. Within this definition:
1. The term "military personnel" refers to military members of the United States
Army, Navy, Marine Corps, Air Force, and Coast Guard.
2. The term "civilian personnel" refers to individuals who are neither nationals of
nor ordinarily resident in the Philippines and who are employed by the United
States armed forces or who are accompanying the United States armed forces,
such as employees of the American Red Cross and the United Services
Organization.258
Article II of EDCA must then be read with Article III of the VFA, which provides for the entry
accommodations to be accorded to U.S. military and civilian personnel:
1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities covered by
this agreement.
2. United States military personnel shall be exempt from passport and visa regulations
upon enteringand departing the Philippines.
3. The following documents only, which shall be required in respect of United States military
personnel who enter the Philippines; xx xx.
4. United States civilian personnel shall be exempt from visa requirements but shall
present, upon demand, valid passports upon entry and departure of the Philippines.
(Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian
personnel to be "temporarily in the Philippines," so long as their presence is "in connection with
activities approved by the Philippine Government." The Philippines, through Article III, even
guarantees that it shall facilitate the admission of U.S. personnel into the country and grant
exemptions from passport and visa regulations. The VFA does not even limit their temporary
presence to specific locations.
Based on the above provisions, the admission and presence of U.S. military and civilian
personnel in Philippine territory are already allowed under the VFA, the treaty supposedly
being implemented by EDCA. What EDCA has effectively done, in fact, is merely provide the
mechanism to identify the locations in which U.S. personnel may perform allowed activities pursuant
to the VFA. As the implementing agreement, it regulates and limits the presence of U.S. personnel
in the country.
b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory;
their entry must be sourced from extraneous Philippine statutes and regulations for the admission of
alien employees or business persons.
Of the three aforementioned classes of individuals who will be conducting certain activities within the
Agreed Locations, we note that only U.S. contractors are not explicitly mentioned in the VFA. This
does not mean, though, that the recognition of their presence under EDCA is ipso facto an
amendment of the treaty, and that there must be Senate concurrence before they are allowed to
enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines. Articles
III and IV, in fact, merely grant them the right of access to, and the authority to conduct certain
activities within the Agreed Locations. Since Article II(3) of EDCA specifically leaves out U.S.
contractors from the coverage of the VFA, they shall not be granted the same entry accommodations
and privileges as those enjoyed by U.S. military and civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S.
contractors into the country.259 We emphasize that the admission of aliens into Philippine territory is
"a matter of pure permission and simple tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel who are accorded entry
accommodations, U.S. contractors are subject to Philippine immigration laws. 261The latter must
comply with our visa and passport regulations262 and prove that they are not subject to exclusion
under any provision of Philippine immigration laws.263 The President may also deny them entry
pursuant to his absolute and unqualified power to prohibit or prevent the admission of aliens whose
presence in the country would be inimical to public interest.264
In the same vein, the President may exercise the plenary power to expel or deport U.S.
contractors265 as may be necessitated by national security, public safety, public health, public morals,
and national interest.266 They may also be deported if they are found to be illegal or undesirable aliens
pursuant to the Philippine Immigration Act267 and the Data Privacy Act.268 In contrast, Article 111(5) of
the VFA requires a request for removal from the Philippine government before a member of the U.S.
personnel may be "dispos[ed] xx x outside of the Philippines."
c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in
furtherance of the MDT and the VFA
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

We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the It is the duty of United States personnel to respect the laws of the Republic of the
activities in which U.S. military and civilian personnel may engage: 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
MUTUAL DEFENSE TREATY take all measures within its authority to ensure that this is done.

Article II Article VII - Importation and Exportation

In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly
byself-help and mutual aid will maintain and develop their individual and collective capacity to
resist armed attack.
Article III
The Parties, through their Foreign Ministers or their deputies, will consult together from time to
time regarding the implementation of this Treaty and whenever in the opinion of either of them the
territorial integrity, political independence or security of either of the Parties is threatened by external
armed attack in the Pacific.
VISITING FORCES AGREEMENT
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.

Preamble 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
xxx
implementing arrangements as necessary. x x x (Emphases Supplied)
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
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
Noting that from time to time elements of the United States armed forces may visit the Republic of Government." To determine the parameters of these implementing arrangements and activities, we
the Philippines; referred to the content, purpose, and framework of the MDT and the VFA.

Considering that cooperation between the United States
Philippines promotes their common security interests;
xxx
Article I - Definitions
and the Republic of the By its very language, the MDT contemplates a situation in which both countries shall engage
in joint activities, so that they can maintain and develop their defense capabilities. The wording itself
evidently invites a reasonable construction that the joint activities shall involve joint military trainings,
maneuvers, and exercises. Both the interpretation 269 and the subsequent practice270 of the parties
show that the MDT independently allows joint military exercises in the country. Lim v. Executive
Secretary271 and Nicolas v. Romulo272 recognized that Balikatan exercises, which are activities that
seek to enhance and develop the strategic and technological capabilities of the parties to resist an
armed attack, "fall squarely under the provisions of the RP-US MDT."273 In Lim, the Court especially
noted that the Philippines and the U.S. continued to conduct joint military exercises even after the
expiration of the MBA and even before the conclusion of the VFA. 274 These activities presumably
related to the Status of Forces Agreement, in which the parties agreed on the status to be accorded
to U.S. military and civilian personnel while conducting activities in the Philippines in relation to the
MDT.275
Further, it can be logically inferred from Article V of the MDT that these joint activities may be
conducted on Philippine or on U.S. soil. The article expressly provides that the term armed
attack includes "an armed attack on the metropolitan territory of either of the Parties, or on
the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels
or aircraft in the Pacific." Surely, in maintaining and developing our defense capabilities, an
assessment or training will need to be performed, separately and jointly by self-help and mutual aid,
in the territories of the contracting parties. It is reasonable to conclude that the assessment of defense
capabilities would entail understanding the terrain, wind flow patterns, and other environmental
factors unique to the Philippines.
It would also be reasonable to conclude that a simulation of how to respond to attacks in vulnerable
areas would be part of the training of the parties to maintain and develop their capacity to resist an
actual armed attack and to test and validate the defense plan of the Philippines. It is likewise
reasonable to imagine that part of the training would involve an analysis of the effect of the weapons
that may be used and how to be prepared for the eventuality. This Court recognizes that all of this
may require training in the area where an armed attack might be directed at the Philippine territory.
The provisions of the MDT must then be read in conjunction with those of the VFA.
Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the Philippines
is "in connection with activities approved by the Philippine Government." While the treaty does not
expressly enumerate or detail the nature of activities of U.S. troops in the country, its Preamble makes
explicit references to the reaffirmation of the obligations of both countries under the MDT. These
obligations include the strengthening of international and regional security in the Pacific area and the
promotion of common security interests.
The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by
the Philippine Government" under Article I of the VFA was intended to be ambiguous in order to
afford the parties flexibility to adjust the details of the purpose of the visit of U.S. personnel. 276 In ruling
that the Terms of Reference for the Balikatan Exercises in 2002 fell within the context of the treaty,
this Court explained:
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the
word "activities" arose from accident. In our view, it was deliberately made that way to give
both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance to protect the nation's marine resources,
sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action
projects such as the building of school houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical
to assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training
exercise," falls under the umbrella of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities - as opposed to combat itself- such as the one subject of
the instant petition, are indeed authorized. (Emphases Supplied)
The joint report of the Senate committees on foreign relations and on national defense and security
further explains the wide range and variety of activities contemplated in the VFA, and how these
activities shall be identified:277
These joint exercises envisioned in the VFA are not limited to combat-related activities; they
have a wide range and variety. They include exercises that will reinforce the AFP's ability to acquire
new techniques of patrol and surveillance to protect the country's maritime resources; sea-
search and rescue operations to assist ships in distress; and disaster-relief operations to aid the
civilian victims of natural calamities, such as earthquakes, typhoons and tidal waves.
xxxx
Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance and
equipment repair; civic-action projects; and consultations and meetings of the Philippine-U.S. Mutual
Defense Board. It is at the level of the Mutual Defense Board-which is headed jointly by the Chief
of Staff of the AFP and the Commander in Chief of the U.S. Pacific Command-that the VFA
exercises are planned. Final approval of any activity involving U.S. forces is, however, invariably
given by the Philippine Government.
xxxx
Siazon clarified that it is not the VFA by itself that determines what activities will be
conductedbetween the armed forces of the U.S. and the Philippines. The VFA regulates and
provides the legal framework for the presence, conduct and legal status of U.S.
personnel while they are in the country for visits, joint exercises and other related activities.
(Emphases Supplied)
What can be gleaned from the provisions of the VFA, the joint report of the Senate committees
on foreign relations and on national defense and security, and the ruling of this Court in Lim is
that the "activities" referred to in the treaty are meant to be specified and
identified infurther agreements. EDCA is one such agreement.
EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S. personnel
referred to in the VFA. EDCA allows U.S. military and civilian personnel to perform "activities
approved by the Philippines, as those terms are defined in the VFA"278 and clarifies that these
activities include those conducted within the Agreed Locations:
1. Security cooperation exercises; joint and combined training activities; humanitarian assistance and
disaster relief activities; and such other activities as may be agreed upon by the 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 agree280
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 contractors282
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
Reference285 mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S. to perform
the following: (a) participate in training exercises; (b) retain command over their forces; (c) establish
temporary structures in the country; (d) share in the use of their respective resources, equipment and
other assets; and (e) exercise their right to self-defense. We quote the relevant portion of the Terms
and Conditions as follows:286
I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be established. Temporary structures such as
those for troop billeting, classroom instruction and messing may be set up for use by RP and
US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority
of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training
exercises (FTX). AFP and US Unit Commanders will retain command over their respective
forces under the overall authority of the Exercise Co-Directors. RP and US participants shall
comply with operational instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct
the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six
month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to
Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising,
assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related
activities in Cebu will be for support of the Exercise.
xx xx.
US exercise participants shall not engage in combat, without prejudice to their right of self-
defense.
These terms of Reference are for purposes of this Exercise only and do not create additional legal
obligations between the US Government and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting, advising
and trainingof RP and US Forces with the primary objective of enhancing the
operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic
regulations.
2. ADMINISTRATION & LOGISTICS
xxxx
a. RP and US participating forces may share, in accordance with their respective laws and
regulations, in the use of their resources, equipment and other assets. They will use their
respective logistics channels. x x x. (Emphases Supplied)
After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we
find that EDCA has remained within the parameters set in these two treaties. Just like the Terms of
Reference mentioned in Lim, mere adjustments in detail to implement the MDT and the VFA can be
in the form of executive agreements.
Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer consistent with
the temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of
EDCA has an initial term of 10 years, a term automatically renewed unless the Philippines or the U.S.
terminates the agreement. According to petitioners, such length of time already has a badge of
permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her Concurring
and Dissenting Opinion that the VFA contemplated mere temporary visits from U.S. forces, whereas
EDCA allows an unlimited period for U.S. forces to stay in the Philippines.288
However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of
effectivity. Although this term is automatically renewed, the process for terminating the agreement is
unilateral and the right to do so automatically accrues at the end of the 10 year period. Clearly, this
method does not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA
does not include a maximum time limit with respect to the presence of U.S. personnel in the country.
We construe this lack of specificity as a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the "adjustment in detail" stage of the
implementation of the treaty. We interpret the subsequent, unconditional concurrence of the Senate
in the entire text of the VFA as an implicit grant to the President of a margin of appreciation in
determining the duration of the "temporary" presence of U.S. personnel in the country.
Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in
nature.289However, this argument has not taken root by virtue of a simple glance at its provisions on
the effectivity period. EDCA does not grant permanent bases, but rather temporary rotational access
to facilities for efficiency. As Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes rotational access to facilities of the
Armed Forces of the Philippines – but not permanent bases which are prohibited under the Philippine
Constitution - with the result of reducing response time should an external threat from a common
adversary crystallize.290
EDCA is far from being permanent in nature compared to the practice of states as shown in other
defense cooperation agreements. For example, Article XIV(l) of the U.S.-Romania defense
agreement provides the following:
This Agreement is concluded for an indefinite period and shall enter into force in accordance with
the internal laws of each Party x x x. (emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:
This Agreement has been concluded for an indefinite period of time. It may be terminated by
written notification by either Party and in that event it terminates 2 years after the receipt of the
notification. (emphasis supplied)
Section VIII of US.-Denmark Mutual Support Agreement similarly provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and B, shall
become effective on the date of the last signature affixed below and shall remain in force until
terminated by the Parties, provided that it may be terminated by either Party upon 180 days written
notice of its intention to do so to the other Party. (emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a longer
initial term:
3. This Agreement shall have an initial term of 25 years and thereafter shall continue in force,
but may be terminated by either Party at any time upon one year's written notice to the other Party
through diplomatic channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than half of
that is provided in the latter agreement. This means that EDCA merely follows the practice of other
states in not specifying a non-extendible maximum term. This practice, however, does not
automatically grant a badge of permanency to its terms. Article XII(4) of EDCA provides very clearly,
in fact, that its effectivity is for an initial term of 10 years, which is far shorter than the terms of
effectivity between the U.S. and other states. It is simply illogical to conclude that the initial, extendible
term of 10 years somehow gives EDCA provisions a permanent character.
The reasoning behind this interpretation is rooted in the constitutional role of the President who, as
Commander-in-Chief of our armed forces, is the principal strategist of the nation and, as such, duty-
bound to defend our national sovereignty and territorial integrity;291 who, as chief architect of our
foreign relations, is the head policymaker tasked to assess, ensure, and protect our national security
and interests;292 who holds the most comprehensive and most confidential information about foreign
countries293 that may affect how we conduct our external affairs; and who has unrestricted access to
highly classified military intelligence data 294 that may threaten the life of the nation. Thus, if after a
geopolitical prognosis of situations affecting the country, a belief is engendered that a much longer
period of military training is needed, the President must be given ample discretion to adopt necessary
measures including the flexibility to set an extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that the
President may not always be able to candidly and openly discuss the complete situation being faced
by the nation. The Chief Executive's hands must not be unduly tied, especially if the situation calls
for crafting programs and setting timelines for approved activities. These activities may be necessary
for maintaining and developing our capacity to resist an armed attack, ensuring our national
sovereignty and territorial integrity, and securing our national interests. If the Senate decides that the
President is in the best position to define in operational terms the meaning of temporary in relation
to the visits, considered individually or in their totality, the Court must respect that policy decision. If
the Senate feels that there is no need to set a time limit to these visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in regard to the extent of the "temporary"
nature of the visits of U.S. personnel does not suggest that the duration to which the President may
agree is unlimited. Instead, the boundaries of the meaning of the term temporary in Article I of the
treaty must be measured depending on the purpose of each visit or activity. 295 That purpose must be
analyzed on a case-by-case basis depending on the factual circumstances surrounding the
conclusion of the implementing agreement. While the validity of the President's actions will be judged
under less stringent standards, the power of this Court to determine whether there was grave abuse
of discretion remains unimpaired.
d. Authorized activities performed by US. contractors within Philippine territory - who were
legitimately permitted to enter the country independent of EDCA - are subject to relevant Philippine
statutes and regulations and must be consistent with the MDT and the VFA
Petitioners also raise296 concerns about the U.S. government's purported practice of hiring private
security contractors in other countries. They claim that these contractors - one of which has already
been operating in Mindanao since 2004 - have been implicated in incidents or scandals in other parts
of the globe involving rendition, torture and other human rights violations. They also assert that these
contractors employ paramilitary forces in other countries where they are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the following
activities:
1. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment, supplies, and materiel; deployment
of forces and materiel; and such other activities as the Parties may agree297
2. Prepositioning and storage of defense equipment, supplies, and materiel, including
delivery, management, inspection, use, maintenance, and removal of such equipment,
supplies and materiel298
3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws,
regulations, and policies299
EDCA requires that all activities within Philippine territory be in accordance with Philippine law. This
means that certain privileges denied to aliens are likewise denied to foreign military contractors.
Relevantly, providing security300and carrying, owning, and possessing firearms301 are illegal for foreign
civilians.
The laws in place already address issues regarding the regulation of contractors. In the 2015 Foreign
Investment Negative list,302 the Executive Department has already identified corporations that have
equity restrictions in Philippine jurisdiction. Of note is No. 5 on the list - private security agencies that
cannot have any foreign equity by virtue of Section 4 of Republic Act No. 5487; 303 and No. 15, which
regulates contracts for the construction of defense-related structures based on Commonwealth Act
No. 541.
Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate
and civil requirements imposed by the law, depending on the entity's corporate structure and the
nature of its business.
That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S.
contractors has been clear even to some of the present members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the
waters off Manila Bay.304 The Senate Committee on Foreign Relations and the Senate Committee on
Environment and Natural Resources chairperson claimed environmental and procedural violations
by the contractor.305 The U.S. Navy investigated the contractor and promised stricter guidelines to be
imposed upon its contractors.306 The statement attributed to Commander Ron Steiner of the public
affairs office of the U.S. Navy's 7th Fleet - that U.S. Navy contractors are bound by Philippine laws -
is of particular relevance. The statement acknowledges not just the presence of the contractors, but
also the U.S. position that these contractors are bound by the local laws of their host state. This
stance was echoed by other U.S. Navy representatives. 307
This incident simply shows that the Senate was well aware of the presence of U.S. contractors for
the purpose of fulfilling the terms of the VFA. That they are bound by Philippine law is clear to all,
even to the U.S.
As applied to EDCA, even when U.S. contractors are granted access to the Agreed Locations, all
their activities must be consistent with Philippine laws and regulations and pursuant to the MDT and
the VFA.
While we recognize the concerns of petitioners, they do not give the Court enough justification to
strike down EDCA. In Lim v. Executive Secretary, we have already explained that we cannot take
judicial notice of claims aired in news reports, "not because of any issue as to their truth, accuracy,
or impartiality, but for the simple reason that facts must be established in accordance with the rules
of evidence."308 What is more, we cannot move one step ahead and speculate that the alleged illegal
activities of these contractors in other countries would take place in the Philippines with certainty. As
can be seen from the above discussion, making sure that U.S. contractors comply with Philippine
laws is a function of law enforcement. EDCA does not stand in the way of law enforcement.
Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage of the
VFA. As visiting aliens, their entry, presence, and activities are subject to all laws and treaties
applicable within the Philippine territory. They may be refused entry or expelled from the country if
they engage in illegal or undesirable activities. There is nothing that prevents them from being
detained in the country or being subject to the jurisdiction of our courts. Our penal laws, 309 labor
laws,310 and immigrations laws311 apply to them and therefore limit their activities here. Until and unless
there is another law or treaty that specifically deals with their entry and activities, their presence in
the country is subject to unqualified Philippine jurisdiction.
EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases
in the Philippines
Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases through
the "euphemistically" termed "Agreed Locations. " 312 Alluding to the definition of this term in Article
II(4) of EDCA, they point out that these locations are actually military bases, as the definition refers
to facilities and areas to which U.S. military forces have access for a variety of purposes. Petitioners
claim that there are several badges of exclusivity in the use of the Agreed Locations by U.S.
forces. First, Article V(2) of EDCA alludes to a "return" of these areas once they are no longer needed
by U.S. forces, indicating that there would be some transfer of use. Second, Article IV(4) ofEDCA
talks about American forces' unimpeded access to the Agreed Locations for all matters relating to
the prepositioning and storage of U.S. military equipment, supplies, and materiel. Third, Article VII of
EDCA authorizes U.S. forces to use public utilities and to operate their own telecommunications
system.
a. Preliminary point on badges of exclusivity
As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-
called "badges of exclusivity," despite the presence of contrary provisions within the text of the
agreement itself.
First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is
within the context of a lengthy provision. The provision as a whole reads as follows:
The United States shall return to the Philippines any Agreed Locations, or any portion thereof,
including non-relocatable structures and assemblies constructed, modified, or improved by the
United States, once no longer required by United States forces for activities under this Agreement.
The Parties or the Designated Authorities shall consult regarding the terms of return of any Agreed
Locations, including possible compensation for improvements or construction.
The context of use is "required by United States forces for activities under this Agreement." Therefore,
the return of an Agreed Location would be within the parameters of an activity that the Mutual Defense
Board (MDB) and the Security Engagement Board (SEB) would authorize. Thus, possession by the
U.S. prior to its return of the Agreed Location would be based on the authority given to it by a joint
body co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with representatives from
the Philippines' Department of National Defense and Department of Foreign Affairs sitting as
members."313 The terms shall be negotiated by both the Philippines and the U.S., or through their
Designated Authorities. This provision, seen as a whole, contradicts petitioners' interpretation of the
return as a "badge of exclusivity." In fact, it shows the cooperation and partnership aspect of EDCA
in full bloom.
Second, the term "unimpeded access" must likewise be viewed from a contextual perspective. Article
IV(4) states that U.S. forces and U.S. contractors shall have "unimpeded access to Agreed Locations
for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use, maintenance, and removal of such equipment,
supplies and materiel."
At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring
in these equipment, supplies, and materiel through the MDB and SEB security mechanism. These
items are owned by the U.S.,314 are exclusively for the use of the U.S.315 and, after going through the
joint consent mechanisms of the MDB and the SEB, are within the control of the U.S.316 More
importantly, before these items are considered prepositioned, they must have gone through the
process of prior authorization by the MDB and the SEB and given proper notification to the AFP. 317
Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the ownership,
use, and control of the U.S. over its own equipment, supplies, and materiel and must have first been
allowed by the joint mechanisms in play between the two states since the time of the MDT and the
VFA. It is not the use of the Agreed Locations that is exclusive per se; it is mere access to items in
order to exercise the rights of ownership granted by virtue of the Philippine Civil Code. 318
As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system, it will be met and answered in part D, infra.
Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a one-to-one
correspondence with the provisions of the 1947 MBA. They assert that both agreements (a) allow
similar activities within the area; (b) provide for the same "species of ownership" over facilities; and
(c) grant operational control over the entire area. Finally, they argue 320 that EDCA is in fact an
implementation of the new defense policy of the U.S. According to them, this policy was not what
was originally intended either by the MDT or by the VFA.
On these points, the Court is not persuaded.
The similar activities cited by petitioners 321 simply show that under the MBA, the U.S. had the right to
construct, operate, maintain, utilize, occupy, garrison, and control the bases. The so-called parallel
provisions of EDCA allow only operational control over the Agreed Locations specifically for
construction activities. They do not allow the overarching power to operate, maintain, utilize, occupy,
garrison, and control a base with full discretion. EDCA in fact limits the rights of the U.S. in respect
of every activity, including construction, by giving the MDB and the SEB the power to determine the
details of all activities such as, but not limited to, operation, maintenance, utility, occupancy,
garrisoning, and control.322
The "species of ownership" on the other hand, is distinguished by the nature of the property. For
immovable property constructed or developed by the U.S., EDCA expresses that ownership will
automatically be vested to the Philippines. 323 On the other hand, for movable properties brought into
the Philippines by the U.S., EDCA provides that ownership is retained by the latter. In contrast, the
MBA dictates that the U.S. retains ownership over immovable and movable properties.
To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in the
shall be the property of the United respect for the Philippine Constitution and
Philippines. The Civil Code's provisions on ownership, as applied, grant the owner of a movable States and may be removed by it before the Philippine laws;
property full rights over that property, even if located in another person's property. 324 expiration of this Agreement or the earlier
relinquishment of the base on which the xxxx
The parallelism, however, ends when the situation involves facilities that can be considered structures are situated. There shall be no
immovable. Under the MBA, the U.S. retains ownership if it paid for the facility. 325 Under EDCA, an obligation on the part of the Philippines or of
immovable is owned by the Philippines, even if built completely on the back of U.S. funding. 326 This is EDCA, Art. II(4):
the United States to rebuild or repair any
consistent with the constitutional prohibition on foreign land ownership. 327 destruction or damage inflicted from any cause
"Agreed Locations" means facilities and
whatsoever on any of the said buildings or
Despite the apparent similarity, the ownership of property is but a part of a larger whole that must be areas that are provided by the Government
structures owned or used by the United States
considered before the constitutional restriction is violated. Thus, petitioners' points on operational of the Philippines through the AFP and that
in the bases. x x x x.
control will be given more attention in the discussion below. The arguments on policy are, however, United States forces, United States
outside the scope of judicial review and will not be discussed contractors, and others as mutually agreed,
1946 Treaty of Gen. Relations, Art. I: shall have the right to access and use pursuant
to this Agreement. Such Agreed Locations may
Moreover, a direct comparison of the MBA and EDCA will result in several important distinctions that The United States of America agrees to be listed in an annex to be appended to this
would allay suspicion that EDCA is but a disguised version of the MBA. withdraw and surrender, and does hereby Agreement, and may be further described in
withdraw and surrender, all rights of implementing arrangements.
b. There are substantial matters that the US. cannot do under EDCA, but which it was authorized to possession, supervision, jurisdiction,
do under the 1947 MBA control or sovereignty existing and exercised EDCA, Art. V:
by the United States of America in and over
The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under the territory and the people of the Philippine
1. The Philippines shall retain ownership of
EDCA for a number of important reasons. Islands, except the use of such bases,
and title to Agreed Locations.
necessary appurtenances to such bases,
First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory and the rights incident thereto, as the United
occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any such right over States of America, by agreement with the x x x x
any part of the Philippines in which its forces or equipment may be found. Below is a comparative Republic of the Philippines may deem
table between the old treaty and EDCA: necessary to retain for the mutual protection of 4. All buildings, non-relocatable structures,
the Republic of the Philippines and of the and assemblies affixed to the land in the
United States of America. x x x. Agreed Locations, including ones altered or
1947 MBA/ 1946 Treaty of General Relations EDCA improved by United States forces, remain the
property of the Philippines.Permanent
1947 MBA, Art. I(1): EDCA, preamble: buildings constructed by United States forces
become the property of the Philippines, once
The Government of the Republic of Affirming that the Parties share an constructed, but shall be used by United States
the Philippines (hereinafter referred to as the understanding for the United States not to forces until no longer required by United States
Philippines) grants to the Government of establish a permanent military presence or forces.
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.
Second, in the bases agreement, the U.S. and the Philippines were visibly not on equal footing when
Recognizing that all United States access to
1947 MBA, Art. XVII(2): it came to deciding whether to expand or to increase the number of bases, as the Philippines may
and use of facilities and areas will be at the
be compelled to negotiate with the U.S. the moment the latter requested an expansion of the existing
invitation of the Philippines and with full
bases or to acquire additional bases. In EDCA, U.S. access is purely at the invitation of the
All buildings and structures which
Philippines.
are erected by the United States in the bases
 1947 MBA/ 1946 Treaty of General Relations EDCA Such access shall be provided promptly
consistent with operational safety and security
1947 MBA, Art.I(3): EDCA, preamble: requirements in accordance with agreed
procedures developed by the Parties.
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 States to invitation of the Philippines and with full Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the
expand such bases, to exchange such bases respect for the Philippine Constitution and establishment, use, operation, defense, and control of military bases, including the limits of territorial
for other bases, to acquire additional bases, Philippine laws; waters and air space adjacent to or in the vicinity of those bases. The only standard used in
or relinquish rights to bases, as any of such determining the extent of its control was military necessity. On the other hand, there is no such grant
exigencies may be required by military of power or authority under EDCA. It merely allows the U.S. to exercise operational control over the
xxxx
necessity. construction of Philippine-owned structures and facilities:
EDCA. Art. II(4):
1946 Treaty of Gen. Relations, Art. I: 1947 MBA EDCA
"Agreed Locations" means facilities and
The United States of America agrees to 1947 MBA, Art.I(2): EDCA, Art. III(4):
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 The Philippines agrees to permit the United The Philippines hereby grants to the United
possession, supervision, jurisdiction, contractors, and others as mutually agreed, States, upon notice to the Philippines, to use States, through bilateral security
control or sovereignty existing and exercised shall have the right to access and use pursuant such of those bases listed in Annex B as the mechanisms, such as the MDB and
by the United States of America in and over to this Agreement. Such Agreed Locations may United States determines to be required by SEB, operational control of Agreed
the territory and the people of the Philippine be listed in an annex to be appended to this military necessity. Locations for construction
Islands, except the use of such Agreement, and may be further described in activities and authority to undertake such
bases, necessary appurtenances to such implementing arrangements. 1947 MBA, Art. III(1): activities on, and make alterations and
bases, and the rights incident thereto, as the improvements to, Agreed Locations. United
United States of America, by agreement It is mutually agreed that the United States forces shall consult on issues
with the Republic of the Philippines may Statesshall have the rights, power and regarding such construction, alterations,
deem necessary to retain for the mutual authority within the bases which and improvements based on the Parties'
protection of the Republic of the Philippines are necessary for the establishment, use, shared intent that the technical requirements
and of the United States of America. x x x. operation and defense thereof or and construction standards of any such
appropriate for the control thereof and all projects undertaken by or on behalf of United
the rights, power and authority within the States forces should be consistent with the
Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed Locations. requirements and standards of both Parties.
On the other hand, given that the U.S. had complete control over its military bases under the 1947 limits of territorial waters and air space
MBA, the treaty did not provide for any express recognition of the right of access of Philippine adjacent to, or in the vicinity of, the bases
authorities. Without that provision and in light of the retention of U.S. sovereignty over the old military which are necessary to provide access to
bases, the U.S. could effectively prevent Philippine authorities from entering those bases. them, or appropriate for their control.

1947 MBA EDCA 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
No equivalent provision. EDCA, Art. III(5): below:

The Philippine Designated Authority and its 1947 MBA EDCA

authorized representative shall have access
to the entire area of the Agreed Locations.
 deepen the harbors, channels, entrances, and anchorages; and to construct or maintain necessary
1947 MBA, Art. VI: EDCA, Art. III(1):
roads and bridges that would afford it access to its military bases.
The United States shall, subject to previous With consideration of the views of
agreement with the Philippines, have the right the Parties, 1947 MBA EDCA
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 States 1947 MBA, Art. III(2)(b): EDCA, Art. III(2):
maneuvers, for additional staging areas, contractors, and vehicles, vessels, and aircraft
bombing and gunnery ranges, and for such operated by or for United States forces may Such rights, power and authority shall When requested, the Designated Authority of
intermediate airfields as may be required for conduct the following activities with respect to include, inter alia, the right, power and the Philippines shall assist in facilitating
safe and efficient air operations. Operations in
Agreed Locations: training; transit; support and authority: x x x x to improve and deepen the transit or temporary access by United States
such areas shall be carried on with due regard related activities; refueling of aircraft; harbors, channels, entrances and forces to public land and facilities (including
and safeguards for the public safety. bunkering of vessels; temporary maintenance anchorages, and to construct or maintain roads, ports, and airfields), including those
of vehicles, vessels, and aircraft; temporary necessary roadsand bridges affording access owned or controlled by local governments, and
1947 MBA, Art.I(2): accommodation of personnel; to the bases. to other land and facilities (including roads,
communications; prepositioning of equipment, ports, and airfields).
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 Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public utilities,
such of those bases listed in Annex B as the Parties may agree. services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals,
United States determines to be required by lakes, rivers, and streams in the Philippines in the same manner that Philippine military forces
military necessity. 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:
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 1947 MBA EDCA
have any right, power, or authority to do so under EDCA.
1947 MBA, Art. VII: EDCA, Art. III(2):
1947 MBA EDCA
It is mutually agreed that the United States When requested, the Designated Authority of
1947 MBA, Art. 111(2)(c) No equivalent provision. may employ and use for United States the Philippines shall assist in facilitating
military forces any and all public utilities, transit or temporary access by United States
Such rights, power and authority shall other services and facilities, airfields, ports, forces to public land and facilities (including
include, inter alia, the right, power and harbors, roads, highways, railroads, bridges, roads, ports, and airfields), including those
authority: x x x x to control (including the viaducts, canals, lakes, rivers and streams in owned or controlled by local governments, and
right to prohibit) in so far as may be required the Philippines under conditions no less to other land and facilities (including roads,
for the efficient operation and safety of the favorable than those that may ports, and airfields).
bases, and within the limits of military be applicablefrom time to time to the military
necessity, anchorages, moorings, landings, forces of the Philippines.
takeoffs, movements and operation of
ships and water-borne craft, aircraft and Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install,
other vehicles on water, in the air or on land maintain, and employ any type of facility, weapon, substance, device, vessel or vehicle, or system
comprising 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
Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities (including Locations.
roads, ports, and airfields). On the other hand, the old treaty gave the U.S. the right to improve and
 1947 MBA
1947 MBA, Art. III(2)(e):
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.
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
1947 MBA, Art. XXII(l):
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
EDCA
EDCA, Art. III(4):
The Philippines hereby grants to the United
States, through bilateral security
mechanisms, such as the MDB and SEB,
operational control of Agreed Locations for
construction activities and authority to
undertake such activities on, and make
alterations and improvements to, Agreed
Locations. United States forces shall consult
on issues regarding such construction,
alterations, and improvements based on the
Parties' shared intent that the technical
requirements and construction standards of
any such projects undertaken by or on behalf
of United States forces should be consistent
with the requirements and standards of both
Parties.
EDCA
No equivalent provision.
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 personneltemporarily 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 of
may be readily identified and their status the United States Department of Defense.
established when necessary by the Philippine United States contractors are not includedas
authorities. Such persons, other than members part of the definition of United States
of the United States armed forces in uniform, personnel in this Agreement, including
shall present their travel documents to the within the context of the VFA.
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):
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
1947 MBA, Art. XVIII(l):
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.
No equivalent provision. There shall be cooperation between such
authorities and the Philippines to this end.
In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that
the 1987 Constitution was adopted.
Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases"
and "facilities" is required before EDCA can be deemed to have passed judicial scrutiny.
c. The meaning of military facilities and bases
An appreciation of what a military base is, as understood by the Filipino people in 1987, would be
vital in determining whether EDCA breached the constitutional restriction.
Prior to the drafting of the 1987 Constitution, the last definition of "military base" was provided under
Presidential Decree No. (PD) 1227.328 Unlawful entry into a military base is punishable under the
decree as supported by Article 281 of the Revised Penal Code, which itself prohibits the act of
trespass.
EDCA
Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this decree means
No equivalent provision. 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.331In 1991, the Philippine Senate rejected the successor
treaty of the 1947 MBA that would have allowed the continuation of U.S. bases in the Philippines.
Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise, taking into
consideration the subsisting agreements between both parties, the rejection of the 1991 proposal,
and a concrete understanding of what was constitutionally restricted. This trend birthed the VFA
which, as discussed, has already been upheld by this Court.
The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations."
By definition, Agreed Locations are
facilities and areas that are provided by the Government of the Philippines through the AFP and that
United States forces, United States contractors, and others as mutually agreed, shall have the right
to access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to
be appended to this Agreement, and may be further described in implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the Philippines shall retain ownership
of and title to the Agreed Locations means that EDCA is "consistent with Article II of the VFA which
recognizes Philippine sovereignty and jurisdiction over locations within Philippine territory. 333
By this interpretation, respondent acknowledges that the contention of petitioners springs from an
understanding that the Agreed Locations merely circumvent the constitutional restrictions. Framed
differently, the bone of contention is whether the Agreed Locations are, from a legal perspective,
foreign military facilities or bases. This legal framework triggers Section 25, Article XVIII, and makes
Senate concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines
to "conduct the following activities: "training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment, supplies and materiel;
deploying forces and materiel; and such other activities as the Parties may agree."
This creation of EDCA must then be tested against a proper interpretation of the Section 25
restriction.
d. Reasons for the constitutional requirements and legal standards for constitutionally compatible
military bases and facilities
Section 25 does not define what is meant by a "foreign military facility or base." While it specifically
alludes to U.S. military facilities and bases that existed during the framing of the Constitution, the
provision was clearly meant to apply to those bases existing at the time and to any future facility or
base. The basis for the restriction must first be deduced from the spirit of the law, in order to set a
standard for the application of its text, given the particular historical events preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to glean, from their collective
wisdom, the intent of Section 25. Their speeches are rich with history and wisdom and present a
clear picture of what they considered in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption of the anti-bases provisions with what
purports to be an objective presentation of the historical background of the military bases in the
Philippines. Care appears, however, to have been taken to underscore the inequity in their
inception as well as their implementation, as to seriously reflect on the supposed objectivity of the
report. Pronouncements of military and civilian officials shortly after World War II are quoted in
support of the proposition on neutrality; regrettably, the implication is that the same remains valid
today, as if the world and international activity stood still for the last 40 years.
We have been given inspired lectures on the effect of the presence of the military bases on
our sovereignty - whether in its legal or political sense is not clear - and the theory that any
country with foreign bases in its territory cannot claim to be fully sovereign or completely
independent. I was not aware that the concepts of sovereignty and independence have now
assumed the totality principle, such that a willing assumption of some delimitations in the exercise of
some aspects thereof would put that State in a lower bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros and cons on the advisability of
having military bases within our shores. Most of us who, only about three months ago, were just
mulling the prospects of these varying contentions are now expected, like armchair generals, to
decide not only on the geopolitical aspects and contingent implications of the military bases but also
on their political, social, economic and cultural impact on our national life. We are asked to answer a
plethora of questions, such as: 1) whether the bases are magnets of nuclear attack or are deterrents
to such attack; 2) whether an alliance or mutual defense treaty is a derogation of our national
sovereignty; 3) whether criticism of us by Russia, Vietnam and North Korea is outweighed by the
support for us of the ASEAN countries, the United States, South Korea, Taiwan, Australia and New
Zealand; and 4) whether the social, moral and legal problems spawned by the military bases and
their operations can be compensated by the economic benefits outlined in papers which have been
furnished recently to all of us.335
xxxx
Of course, one side of persuasion has submitted categorical, unequivocal and forceful assertions of
their positions. They are entitled to the luxury of the absolutes. We are urged now to adopt the
proposed declaration as a "golden," "unique" and "last" opportunity for Filipinos to assert
their sovereign rights. Unfortunately, I have never been enchanted by superlatives, much less for
the applause of the moment or the ovation of the hour. Nor do I look forward to any glorious summer
after a winter of political discontent. Hence, if I may join Commissioner Laurel, I also invoke a caveat
not only against the tyranny of labels but also the tyranny of slogans. 336
xxxx
SPEECH OF COMMISSIONER SUAREZ337
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the resolution of the problem of the removal of
foreign bases from the Philippines have been adequately treated by previous speakers. Let me,
therefore, just recapitulate the arguments adduced in favor of a foreign bases-free Philippines:
1. That every nation should be free to shape its own destiny without outside interference;
2. That no lasting peace and no true sovereignty would ever be achieved so long as there
are foreign military forces in our country;
3. That the presence of foreign military bases deprives us of the very substance of
national sovereigntyand this is a constant source of national embarrassment and an insult
to our national dignity and selfrespect as a nation;
4. That these foreign military bases unnecessarily expose our country to devastating
nuclear attacks;
5. That these foreign military bases create social problems and are designed to perpetuate
the strangle-hold of United States interests in our national economy and development;
6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our
country of jurisdiction over civil and criminal offenses committed within our own national
territory and against Filipinos;
7. That the bases agreements are colonial impositions and dictations upon our helpless
country; and
8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null
and void ab initio, especially because they did not count the sovereign consent and will of the
Filipino people.338
xxxx
In the real sense, Madam President, if we in the Commission could accommodate the provisions I
have cited, what is our objection to include in our Constitution a matter as priceless as the nationalist
values we cherish? A matter of the gravest concern for the safety and survival of this
nation indeed deserves a place in our Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-respect as a nation and the future of
generations to come with thirty pieces of silver? 339
SPEECH OF COMMISSIONER BENNAGEN340
xxxx
The underlying principle of military bases and nuclear weapons wherever they are found and
whoever owns them is that those are for killing people or for terrorizing humanity. This objective
by itself at any point in history is morally repugnant. This alone is reason enough for us to
constitutionalize the ban on foreign military bases and on nuclear weapons. 341
SPEECH OF COMMISSIONER BACANI342
xxxx
x x x Hence, the remedy to prostitution does not seem to be primarily to remove the
bases because even if the bases are removed, the girls mired in poverty will look for their clientele
elsewhere. The remedy to the problem of prostitution lies primarily elsewhere - in an alert and
concerned citizenry, a healthy economy and a sound education in values.343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of foreign military bases here is that
they impair portions of our sovereignty. While I agree that our country's sovereignty should not
be impaired, I also hold the view that there are times when it is necessary to do so according to the
imperatives of national interest. There are precedents to this effect. Thus, during World War II,
England leased its bases in the West Indies and in Bermuda for 99 years to the United States for its
use as naval and air bases. It was done in consideration of 50 overaged destroyers which the United
States gave to England for its use in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United States for the latter's use as
a naval base in the Indian Ocean. About the same time, the United States obtained bases in Spain,
Egypt and Israel. In doing so, these countries, in effect, contributed to the launching of a preventive
defense posture against possible trouble in the Middle East and in the Indian Ocean for their own
protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations, the presence of American troops
in the country is a projection of America's security interest. Enrile said that nonetheless, they also
serve, although in an incidental and secondary way, the security interest of the Republic of the
Philippines and the region. Yes, of course, Mr. Enrile also echoes the sentiments of most of us in this
Commission, namely: It is ideal for us as an independent and sovereign nation to ultimately
abrogate the RP-US military treaty and, at the right time, build our own air and naval might.347
xxxx
Allow me to say in summation that I am for the retention of American military bases in the
Philippines provided that such an extension from one period to another shall be concluded
upon concurrence of the parties, and such extension shall be based on justice, the historical
amity of the people of the Philippines and the United States and their common defense
interest.348
SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission started with this task of framing a
constitution, I read a statement of President Aquino to the effect that she is for the removal of the
U.S. military bases in this country but that the removal of the U.S. military bases should not be done
just to give way to other foreign bases. Today, there are two world superpowers, both vying to control
any and all countries which have importance to their strategy for world domination. The Philippines
is one such country.
Madam President, I submit that I am one of those ready to completely remove any vestiges of
the days of enslavement, but not prepared to erase them if to do so would merely leave a vacuum
to be occupied by a far worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our brethren in the Middle East,
in Indo-China, Central America, in South Africa - there has been escalation of war in some of these
areas because of foreign intervention which views these conflicts through the narrow prism of the
East-West conflict. The United States bases have been used as springboards for intervention
in some of these conflicts. We should not allow ourselves to be party to the warlike mentality
of these foreign interventionists. We must always be on the side of peace – this means that we
should not always rely on military solution. 352
xxxx
x x x The United States bases, therefore, are springboards for intervention in our own internal
affairs and in the affairs of other nations in this region.
xxxx
Thus, I firmly believe that a self-respecting nation should safeguard its fundamental freedoms which
should logically be declared in black and white in our fundamental law of the land - the
Constitution. Let us express our desire for national sovereignty so we may be able to achieve
national self-determination. Let us express our desire for neutrality so that we may be able to follow
active nonaligned independent foreign policies. Let us express our desire for peace and a nuclear-
free zone so we may be able to pursue a healthy and tranquil existence, to have peace that is
autonomous and not imposed. 353
xxxx
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid, ang
kahulugan nito ay pagkaalipin. Para sa magbubukid, ang pananatili ng U.S. military bases ay tinik
sa dibdib ng sambayanang Pilipinong patuloy na nakabaon. Para sa sambayanang magbubukid,
ang ibig sabihin ng U.S. military bases ay batong pabigat na patuloy na pinapasan ng
sambayanang Pilipino. Para sa sambayanang magbubukid, ang pananatili ng U.S. military
bases ay isang nagdudumilat na katotohanan ng patuloy na paggahasa ng imperyalistang
Estados Unidos sa ating Inang Bayan - economically, politically and culturally. Para sa
sambayanang magbubukid ang U.S. military bases ay kasingkahulugan ng nuclear weapon - ang
kahulugan ay magneto ng isang nuclear war. Para sa sambayanang magbubukid, ang
kahulugan ng U.S. military bases ay isang salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves from the instruments of domination
and subservience has clearly been defined these past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to declare my support for the committee's position
to enshrine in the Constitution a fundamental principle forbidding foreign military bases, troops or
facilities in any part of the Philippine territory as a clear and concrete manifestation of our inherent
right to national self-determination, independence and sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to the social
cost of allowing foreign countries to maintain military bases in our country. Previous speakers have
dwelt on this subject, either to highlight its importance in relation to the other issues or to gloss over
its significance and !llake this a part of future negotiations.357
xxxx
Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is the
response of the Filipino people against this condition and other conditions that have already been
clearly and emphatically discussed in past deliberations. The deletion, therefore, of Section 3 in the
Constitution we are drafting will have the following implications:
First, the failure of the Constitutional Commission to decisively respond to the continuing violation
of our territorial integrity via the military bases agreement which permits the retention of U.S.
facilities within the Philippine soil over which our authorities have no exclusive jurisdiction
contrary to the accepted definition of the exercise of sovereignty.
Second, consent by this forum, this Constitutional Commission, to an exception in the application
of a provision in the Bill of Rights that we have just drafted regarding equal application of the laws
of the land to all inhabitants, permanent or otherwise, within its territorial boundaries.
Third, the continued exercise by the United States of extraterritoriality despite the
condemnations of such practice by the world community of nations in the light of overwhelming
international approval of eradicating all vestiges of colonialism.358
xxxx
Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such can be
wielded to force the United States government to concede to better terms and conditions concerning
the military bases agreement, including the transfer of complete control to the Philippine
government of the U.S. facilities, while in the meantime we have to suffer all existing indignities
and disrespect towards our rights as a sovereign nation.
xxxx
Eighth, the utter failure of this forum to view the issue of foreign military bases as essentially
a question of sovereignty which does not require in-depth studies or analyses and which this forum
has, as a constituent assembly drafting a constitution, the expertise and capacity to decide on except
that it lacks the political will that brought it to existence and now engages in an elaborate scheme of
buck-passing.
xxxx
Without any doubt we can establish a new social order in our country, if we reclaim, restore, uphold
and defend our national sovereignty. National sovereignty is what the military bases issue is all
about. It is only the sovereign people exercising their national sovereignty who can design an
independent course and take full control of their national destiny.359
SPEECH OF COMMISSIONER P ADILLA360
xxxx
Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3 and 4 on
neutrality, nuclear and bases-free country, some views stress sovereignty of the Republic and
even invoke survival of the Filipino nation and people. 361
REBUTTAL OF COMMISSIONER NOLLEDO362
xxxx
The anachronistic and ephemeral arguments against the provisions of the committee report to
dismantle the American bases after 1991 only show the urgent need to free our country from the
entangling alliance with any power bloc.363
xxxx
xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the so-called
RP-US Bases Agreement will expire in 1991, that it infringes on our sovereignty and jurisdiction
as well as national dignity and honor, that it goes against the UN policy of disarmament and that it
constitutes unjust intervention in our internal affairs.364 (Emphases Supplied)
The Constitutional Commission eventually agreed to allow foreign military bases, troops, or facilities,
subject to the provisions of Section 25. It is thus important to read its discussions carefully. From
these discussions, we can deduce three legal standards that were articulated by the Constitutional
Commission Members. These are characteristics of any agreement that the country, and by
extension this Court, must ensure are observed. We can thereby determine whether a military base
or facility in the Philippines, which houses or is accessed by foreign military troops, is foreign or
remains a Philippine military base or facility. The legal standards we find applicable are:
independence from foreign control, sovereignty and applicable law, and national security and
territorial integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's drafting was
aimed at asserting Philippine independence from the U.S., as well as control over our country's
territory and military.
Under the Civil Code, there are several aspects of control exercised over property.
Property is classified as private or public. 365 It is public if "intended for public use, such as roads,
canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and
others of similar character[,]" or "[t]hose which belong to the State, without being for public use, and
are intended for some public service or for the development of the national wealth. " 366
Quite clearly, the Agreed Locations are contained within a property for public use, be it within a
government military camp or property that belongs to the Philippines. 1avvphi1
Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil Code
provides that "[t]he owner has the right to enjoy and dispose of a thing, without other limitations than
those established by law." Moreover, the owner "has also a right of action against the holder and
possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the owner of property, even against those
who hold the property. Possession, after all, merely raises a disputable presumption of ownership,
which can be contested through normal judicial processes.367
In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the
Philippine govemment.368 What U.S. personnel have a right to, pending mutual agreement, is access
to and use of these locations.369
The right of the owner of the property to allow access and use is consistent with the Civil Code, since
the owner may dispose of the property in whatever way deemed fit, subject to the limits of the law.
So long as the right of ownership itself is not transferred, then whatever rights are transmitted by
agreement does not completely divest the owner of the rights over the property, but may only limit
them in accordance with law.
Hence, even control over the property is something that an owner may transmit freely. This act does
not translate into the full transfer of ownership, but only of certain rights. In Roman Catholic Apostolic
Administrator of Davao, Inc. v. Land Registration Commission, we stated that the constitutional
proscription on property ownership is not violated despite the foreign national's control over the
property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access.
Under its pertinent provisions, it is the Designated Authority of the Philippines that shall, when
requested, assist in facilitating transit or access to public land and facilities.371 The activities carried
out within these locations are subject to agreement as authorized by the Philippine
govemment.372 Granting the U.S. operational control over these locations is likewise subject to EDCA'
s security mechanisms, which are bilateral procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or a duly designated representative is
given access to the Agreed Locations.374
To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the
Constitutional Commission. In fact, they seem to have been the product of deliberate negotiation
from the point of view of the Philippine government, which balanced constitutional restrictions on
foreign military bases and facilities against the security needs of the country. In the 1947 MBA, the
U.S. forces had "the right, power and authority x x x to construct (including dredging and filling),
operate, maintain, utilize, occupy, garrison and control the bases."375 No similarly explicit provision is
present in EDCA.
Nevertheless, the threshold for allowing the presence of foreign military facilities and bases has been
raised by the present Constitution. Section 25 is explicit that foreign military bases, troops, or facilities
shall not be allowed in the Philippines, except under a treaty duly concurred in by the Senate. Merely
stating that the Philippines would retain ownership would do violence to the constitutional requirement
if the Agreed Locations were simply to become a less obvious manifestation of the U.S. bases that
were rejected in 1991.
When debates took place over the military provisions of the Constitution, the committee rejected a
specific provision proposed by Commissioner Sarmiento. The discussion illuminates and provides
context to the 1986 Constitutional Commission's vision of control and independence from the U.S.,
to wit:
MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE STATE
SHALL ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-RELIANT ARMED FORCES
OF THE PHILIPPINES." Allow me to briefly explain, Madam President. The Armed Forces of the
Philippines is a vital component of Philippine society depending upon its training, orientation and
support. It will either be the people's protector or a staunch supporter of a usurper or tyrant, local and
foreign interest. The Armed Forces of the Philippines' past and recent experience shows it has
never been independent and self-reliant. Facts, data and statistics will show that it has been
substantially dependent upon a foreign power. In March 1968, Congressman Barbero, himself a
member of the Armed Forces of the Philippines, revealed top secret documents showing what he
described as U.S. dictation over the affairs of the Armed Forces of the Philippines. He showed that
under existing arrangements, the United States unilaterally determines not only the types and
quantity of arms and equipments that our armed forces would have, but also the time when
these items are to be made available to us. It is clear, as he pointed out, that the composition,
capability and schedule of development of the Armed Forces of the Philippines is under the
effective control of the U.S. government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that would
assert "independent" and "self-reliant" armed forces. This proposal was rejected by the
committee, however. As Commissioner De Castro asserted, the involvement of the Philippine
military with the U.S. did not, by itself, rob the Philippines of its real independence. He made
reference to the context of the times: that the limited resources of the Philippines and the current
insurgency at that time necessitated a strong military relationship with the U.S. He said that the U.S.
would not in any way control the Philippine military despite this relationship and the fact that the
former would furnish military hardware or extend military assistance and training to our military.
Rather, he claimed that the proposal was in compliance with the treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on 12
September 1986, I spoke on the selfreliance policy of the armed forces. However, due to very limited
resources, the only thing we could do is manufacture small arms ammunition. We cannot blame the
armed forces. We have to blame the whole Republic of the Philippines for failure to provide the
necessary funds to make the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream.
And I would like it that way. But as of this time, fighting an insurgency case, a rebellion in our country
- insurgency - and with very limited funds and very limited number of men, it will be quite impossible
for the Philippines to appropriate the necessary funds therefor. However, if we say that the U.S.
government is furnishing us the military hardware, it is not control of our armed forces or of
our government. It is in compliance with the Mutual Defense Treaty. It is under the military
assistance program that it becomes the responsibility of the United States to furnish us the necessary
hardware in connection with the military bases agreement. Please be informed that there are three
(3) treaties connected with the military bases agreement; namely: the RP-US Military Bases
Agreement, the Mutual Defense Treaty and the Military Assistance Program.
My dear Commissioner, when we enter into a treaty and we are furnished the military hardware
pursuant to that treaty, it is not in control of our armed forces nor control of our
government. True indeed, we have military officers trained in the U.S. armed forces school. This is
part of our Military Assistance Program, but it does not mean that the minds of our military officers
are for the U.S. government, no. I am one of those who took four courses in the United States schools,
but I assure you, my mind is for the Filipino people. Also, while we are sending military officers to
train or to study in U.S. military schools, we are also sending our officers to study in other military
schools such as in Australia, England and in Paris. So, it does not mean that when we send military
officers to United States schools or to other military schools, we will be under the control of that
country. We also have foreign officers in our schools, we in the Command and General Staff College
in Fort Bonifacio and in our National Defense College, also in Fort Bonifacio.377 (Emphases supplied)
This logic was accepted in Tañada v. Angara, in which the Court ruled that independence does not
mean the absence of foreign participation:
Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates
neither "economic seclusion" nor "mendicancy in the international community." As explained by
Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:
Economic self reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue foreign control of the national
economy, especially in such strategic industries as in the development of natural resources and
public utilities.378 (Emphases supplied)
The heart of the constitutional restriction on foreign military facilities and bases is therefore the
assertion of independence from the U.S. and other foreign powers, as independence is exhibited by
the degree of foreign control exerted over these areas. The essence of that independence is self-
1âwphi1
governance and self-control.379 Independence itself is "[t]he state or condition of being free from
dependence, subjection, or control. "380
Petitioners assert that EDCA provides the U.S. extensive control and authority over Philippine
facilities and locations, such that the agreement effectively violates Section 25 of the 1987
Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational control
and defense." The term "operational control" has led petitioners to regard U.S. control over the
Agreed Locations as unqualified and, therefore, total. 382 Petitioners contend that the word "their" refers
to the subject "Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and authorities within Agreed Locations that
are necessary for their operational control or defense, including taking appropriate measure to protect
United States forces and United States contractors. The United States should coordinate such
measures with appropriate authorities of the Philippines.
A basic textual construction would show that the word "their," as understood above, is a possessive
pronoun for the subject "they," a third-person personal pronoun in plural form. Thus, "their" cannot
be used for a non-personal subject such as "Agreed Locations." The simple grammatical conclusion
is that "their" refers to the previous third-person plural noun, which is "United States forces." This
conclusion is in line with the definition of operational control.
a. U.S. operational control as the exercise of authority over U.S. personnel, and not over the Agreed
Locations
Operational control, as cited by both petitioner and respondents, is a military term referring to
[t]he authority to perform those functions of command over subordinate forces involving organizing
and employing commands and forces, assigning tasks, designating objective, and giving authoritative
direction necessary to accomplish the mission.383
At times, though, operational control can mean something slightly different. In JUSMAG Philippines
v. National Labor Relations Commission, the Memorandum of Agreement between the AFP and
JUSMAG Philippines defined the term as follows:384
The term "Operational Control" includes, but is not limited to, all personnel administrative actions,
such as: hiring recommendations; firing recommendations; position classification; discipline;
nomination and approval of incentive awards; and payroll computation.
Clearly, traditional standards define "operational control" as personnel control. Philippine law, for
instance, deems operational control as one exercised by police officers and civilian authorities over
their subordinates and is distinct from the administrative control that they also exercise over police
subordinates.385 Similarly, a municipal mayor exercises operational control over the police within the
municipal government,386 just as city mayor possesses the same power over the police within the city
government.387
Thus, the legal concept of operational control involves authority over personnel in a commander-
subordinate relationship and does not include control over the Agreed Locations in this particular
case. Though not necessarily stated in EDCA provisions, this interpretation is readily implied by the
reference to the taking of "appropriate measures to protect United States forces and United States
contractors."
It is but logical, even necessary, for the U.S. to have operational control over its own forces, in much
the same way that the Philippines exercises operational control over its own units.
For actual operations, EDCA is clear that any activity must be planned and pre-approved by the
MDB-SEB.388 This provision evinces the partnership aspect of EDCA, such that both stakeholders
have a say on how its provisions should be put into effect.
b. Operational control vis-à-vis effective command and control
Petitioners assert that beyond the concept of operational control over personnel, qualifying access
to the Agreed Locations by the Philippine Designated Authority with the phrase "consistent with
operational safety and security requirements in accordance with agreed procedures developed by
the Parties" leads to the conclusion that the U.S. exercises effective control over the Agreed
Locations.389 They claim that if the Philippines exercises possession of and control over a given area,
its representative should not have to be authorized by a special provision. 390
For these reasons, petitioners argue that the "operational control" in EDCA is the "effective command
and control" in the 1947 MBA.391 In their Memorandum, they distinguish effective command and
control from operational control in U.S. parlance. 392 Citing the Doctrine for the Armed Forces of the
United States, Joint Publication 1, "command and control (C2)" is defined as "the exercise of authority
and direction by a properly designated commander over assigned and attached forces in the
accomplishment of the mission x x x."393 Operational control, on the other hand, refers to "[t]hose
functions of command over assigned forces involving the composition of subordinate forces, the
assignment of tasks, the designation of objectives, the overall control of assigned resources, and the
full authoritative direction necessary to accomplish the mission." 394
Two things demonstrate the errors in petitioners' line of argument.
Firstly, the phrase "consistent with operational safety and security requirements in accordance with
agreed procedures developed by the Parties" does not add any qualification beyond that which is
already imposed by existing treaties. To recall, EDCA is based upon prior treaties, namely the VFA
and the MDT.395 Treaties are in themselves contracts from which rights and obligations may be
claimed or waived.396 In this particular case, the Philippines has already agreed to abide by the
security mechanisms that have long been in place between the U.S. and the Philippines based on
the implementation of their treaty relations. 397
Secondly, the full document cited by petitioners contradicts the equation of "operational control" with
"effective command and control," since it defines the terms quite differently, viz:398
Command and control encompasses the exercise of authority, responsibility, and direction by a
commander over assigned and attached forces to accomplish the mission. Command at all levels is
the art of motivating and directing people and organizations into action to accomplish missions.
Control is inherent in command. To control is to manage and direct forces and functions consistent
with a commander's command authority. Control of forces and functions helps commanders and
staffs compute requirements, allocate means, and integrate efforts. Mission command is the
preferred method of exercising C2. A complete discussion of tenets, organization, and processes for
effective C2 is provided in Section B, "Command and Control of Joint Forces," of Chapter V "Joint
Command and Control."
Operational control is defined thus:399
OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform
those functions of command over subordinate forces involving organizing and employing commands
and forces, assigning tasks, designating objectives, and giving authoritative direction over all aspects
of military operations and joint training necessary to accomplish the mission. It should be delegated
to and exercised by the commanders of subordinate organizations; normally, this authority is
exercised through subordinate JFCs, Service, and/or functional component commanders. OPCON
provides authority to organize and employ commands and forces as the commander considers
necessary to accomplish assigned missions. It does not include authoritative direction for logistics or
matters of administration, discipline, internal organization, or unit training. These elements of
COCOM must be specifically delegated by the CCDR. OPCON does include the authority to delineate
functional responsibilities and operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of combatant command, while command and
control is the overall power and responsibility exercised by the commander with reference to a
mission. Operational control is a narrower power and must be given, while command and control is
plenary and vested in a commander. Operational control does not include the planning, programming,
budgeting, and execution process input; the assignment of subordinate commanders; the building of
relationships with Department of Defense agencies; or the directive authority for logistics, whereas
these factors are included in the concept of command and control.400
This distinction, found in the same document cited by petitioners, destroys the very foundation of the
arguments they have built: that EDCA is the same as the MBA.
c. Limited operational control over the Agreed Locations only for construction activitites
As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational
control within the Agreed Locations during construction activities.401 This exercise of operational
control is premised upon the approval by the MDB and the SEB of the construction activity through
consultation and mutual agreement on the requirements and standards of the construction, alteration,
or improvement.402
Despite this grant of operational control to the U.S., it must be emphasized that the grant is only for
construction activities. The narrow and limited instance wherein the U.S. is given operational control
within an Agreed Location cannot be equated with foreign military control, which is so abhorred by
the Constitution.
The clear import of the provision is that in the absence of construction activities, operational control
over the Agreed Location is vested in the Philippine authorities. This meaning is implicit in the specific
grant of operational control only during construction activities. The principle of constitutional
construction, "expressio unius est exclusio alterius," means the failure to mention the thing becomes
the ground for inferring that it was deliberately excluded.403Following this construction, since EDCA
mentions the existence of U.S. operational control over the Agreed Locations for construction
activities, then it is quite logical to conclude that it is not exercised over other activities.
Limited control does not violate the Constitution. The fear of the commissioners was total control, to
the point that the foreign military forces might dictate the terms of their acts within the
Philippines.404 More important, limited control does not mean an abdication or derogation of Philippine
sovereignty and legal jurisdiction over the Agreed Locations. It is more akin to the extension of
diplomatic courtesies and rights to diplomatic agents,405 which is a waiver of control on a limited scale
and subject to the terms of the treaty.
This point leads us to the second standard envisioned by the framers of the Constitution: that the
Philippines must retain sovereignty and jurisdiction over its territory.
ii. Second standard: Philippine sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United States not to establish a permanent
military presence or base in the territory of the Philippines." Further on, it likewise states the
recognition that "all United States access to and use of facilities and areas will be at the invitation of
the Philippines and with full respect for the Philippine Constitution and Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine
sovereignty and jurisdiction over the Agreed Locations.
Sovereignty is the possession of sovereign power,406 while jurisdiction is the conferment by law of
power and authority to apply the law.407 Article I of the 1987 Constitution states:
The national territory comprises the Philippine archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippines has sovereignty or jurisdiction,
consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines. (Emphasis supplied)
From the text of EDCA itself, Agreed Locations are territories of the Philippines that the U.S. forces
are allowed to access and use.408 By withholding ownership of these areas and retaining unrestricted
access to them, the government asserts sovereignty over its territory. That sovereignty exists so long
as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for security with respect to the Agreed
Locations.410Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction has
been transferred to the U.S. Even the previously discussed necessary measures for operational
control and defense over U.S. forces must be coordinated with Philippine authorities.411
Jurisprudence bears out the fact that even under the former legal regime of the MBA, Philippine laws
continue to be in force within the bases.412 The difference between then and now is that EDCA retains
the primary jurisdiction of the Philippines over the security of the Agreed Locations, an important
provision that gives it actual control over those locations. Previously, it was the provost marshal of
the U.S. who kept the peace and enforced Philippine law in the bases. In this instance, Philippine
forces act as peace officers, in stark contrast to the 1947 MBA provisions on jurisdiction.413
iii. Third standard: must respect national security and territorial integrity
The last standard this Court must set is that the EDCA provisions on the Agreed Locations must not
impair or threaten the national security and territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially
rendered the prior notion of permanent military bases obsolete.
Moreover, military bases established within the territory of another state is no longer viable because
of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without
returning to their home country. These military warships are actually used as substitutes for a land-
home base not only of military aircraft but also of military personnel and facilities. Besides, vessels
are mobile as compared to a land-based military headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow, for
instance, the re-establishment of the Subic military base or the Clark Air Field as U.S. military
reservations. In this context, therefore, this Court has interpreted the restrictions on foreign bases,
troops, or facilities as three independent restrictions. In accord with this interpretation, each restriction
must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define what a military base is. 415 While
the source is not authoritative, petitioners make the point that the Agreed Locations, by granting
access and use to U.S. forces and contractors, are U.S. bases under a different name. 416 More
important, they claim that the Agreed Locations invite instances of attack on the Philippines from
enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of politics
and policy. At the very least, we can say that under international law, EDCA does not provide a legal
basis for a justified attack on the Philippines.
In the first place, international law disallows any attack on the Agreed Locations simply because of
the presence of U.S. personnel. Article 2(4) of the United Nations Charter states that "All Members
shall refrain in their international relations from the threat or use of force against the territorial integrity
or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations."418 Any unlawful attack on the Philippines breaches the treaty, and triggers Article 51
of the same charter, which guarantees the inherent right of individual or collective self-defence.
Moreover, even if the lawfulness of the attack were not in question, international humanitarian law
standards prevent participants in an armed conflict from targeting non-participants. International
humanitarian law, which is the branch of international law applicable to armed conflict, expressly
limits allowable military conduct exhibited by forces of a participant in an armed conflict. 419 Under this
legal regime, participants to an armed conflict are held to specific standards of conduct that require
them to distinguish between combatants and non-combatants,420 as embodied by the Geneva
Conventions and their Additional Protocols.421
Corollary to this point, Professor John Woodcliffe, professor of international law at the University of
Leicester, noted that there is no legal consensus for what constitutes a base, as opposed to other
terms such as "facilities" or "installation."422 In strategic literature, "base" is defined as an installation
"over which the user State has a right to exclusive control in an extraterritorial sense." 423 Since this
definition would exclude most foreign military installations, a more important distinction must be
made.
For Woodcliffe, a type of installation excluded from the definition of "base" is one that does not fulfill
a combat role. He cites an example of the use of the territory of a state for training purposes, such
as to obtain experience in local geography and climactic conditions or to carry out joint
exercises.424 Another example given is an advanced communications technology installation for
purposes of information gathering and communication. 425 Unsurprisingly, he deems these non-
combat uses as borderline situations that would be excluded from the functional understanding of
military bases and installations.426
By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed
to be protected, unless proven otherwise.427 Moreover, the principle of distinction requires combatants
in an armed conflict to distinguish between lawful targets428 and protected targets.429 In an actual
armed conflict between the U.S. and a third state, the Agreed Locations cannot be considered U.S.
territory, since ownership of territory even in times of armed conflict does not change. 430
Hence, any armed attack by forces of a third state against an Agreed Location can only be legitimate
under international humanitarian law if it is against a bona fide U.S. military base, facility, or
installation that directly contributes to the military effort of the U.S. Moreover, the third state's forces
must take all measures to ensure that they have complied with the principle of distinction (between
combatants and non-combatants).
There is, then, ample legal protection for the Philippines under international law that would ensure
its territorial integrity and national security in the event an Agreed Location is subjected to attack. As
EDCA stands, it does not create the situation so feared by petitioners - one in which the Philippines,
while not participating in an armed conflict, would be legitimately targeted by an enemy of the U.S.431
In the second place, this is a policy question about the wisdom of allowing the presence of U.S.
personnel within our territory and is therefore outside the scope of judicial review.
Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or facilities within
the military base of another sovereign state is nothing new on the international plane. In fact, this
arrangement has been used as the framework for several defense cooperation agreements, such as
in the following:
 1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
2. 2009 U.S.-Colombia Defense Cooperation Agreement433
3. 2009 U.S.-Poland Status of Forces Agreement 434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces access to their military bases. 437 That
access is without rental or similar costs to the U.S.438 Further, U.S. forces are allowed to undertake
construction activities in, and make alterations and improvements to, the agreed locations, facilities,
or areas.439 As in EDCA, the host states retain ownership and jurisdiction over the said bases. 440
In fact, some of the host states in these agreements give specific military-related rights to the U.S.
For example, under Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United
States forces x x x are authorized access to and may use agreed facilities and areas x x x for staging
and deploying of forces and materiel, with the purpose of conducting x x x contingency operations
and other missions, including those undertaken in the framework of the North Atlantic Treaty." In
some of these agreements, host countries allow U.S. forces to construct facilities for the latter’s
exclusive use.441
Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive
Secretary, the Court already upheld the Terms of Reference of Balikatan 02-1, which authorized U.S.
forces to set up "[t]emporary structures such as those for troop billeting, classroom instruction and
messing x x x during the Exercise." Similar provisions are also in the Mutual Logistics Support
Agreement of 2002 and 2007, which are essentially executive agreements that implement the VFA,
the MDT, and the 1953 Military Assistance Agreement. These executive agreements similarly tackle
the "reciprocal provision of logistic support, supplies, and services," 442 which include "[b ]illeting, x x x
operations support (and construction and use of temporary structures incident to operations support),
training services, x x x storage services, x x x during an approved activity." 443 These logistic supplies,
support, and services include temporary use of "nonlethal items of military equipment which are not
designated as significant military equipment on the U.S. Munitions List, during an approved
activity."444 The first Mutual Logistics Support Agreement has lapsed, while the second one has been
extended until 2017 without any formal objection before this Court from the Senate or any of its
members.
The provisions in EDCA dealing with Agreed Locations are analogous to those in the aforementioned
executive agreements. Instead of authorizing the building of temporary structures as previous
agreements have done, EDCA authorizes the U.S. to build permanent structures or alter or improve
existing ones for, and to be owned by, the Philippines. 445 EDCA is clear that the Philippines retains
ownership of altered or improved facilities and newly constructed permanent or non-relocatable
structures.446 Under EDCA, U.S. forces will also be allowed to use facilities and areas for "training; x
x x; support and related activities; x x x; temporary accommodation of personnel; communications"
and agreed activities.447
Concerns on national security problems that arise from foreign military equipment being present in
the Philippines must likewise be contextualized. Most significantly, the VFA already authorizes the
presence of U.S. military equipment in the country. Article VII of the VFA already authorizes the
U.S. to import into or acquire in the Philippines "equipment, materials, supplies, and other property"
that will be used "in connection with activities" contemplated therein. The same section also
recognizes that "[t]itle to such property shall remain" with the US and that they have the discretion to
"remove such property from the Philippines at any time."
There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense
equipment, supplies, and materiel,"448 since these are sanctioned in the VFA. In fact, the two countries
have already entered into various implementing agreements in the past that are comparable to the
present one. The Balikatan 02-1 Terms of Reference mentioned in Lim v. Executive
Secretary specifically recognizes that Philippine and U.S. forces "may share x x x in the use of their
resources, equipment and other assets." Both the 2002 and 2007 Mutual Logistics Support
Agreements speak of the provision of support and services, including the "construction and use of
temporary structures incident to operations support" and "storage services" during approved
activities.449 These logistic supplies, support, and services include the "temporary use of x x x
nonlethal items of military equipment which are not designated as significant military equipment on
the U.S. Munitions List, during an approved activity."450Those activities include "combined exercises
and training, operations and other deployments" and "cooperative efforts, such as humanitarian
assistance, disaster relief and rescue operations, and maritime anti-pollution operations" within or
outside Philippine territory.451 Under EDCA, the equipment, supplies, and materiel that will be
prepositioned at Agreed Locations include "humanitarian assistance and disaster relief equipment,
supplies, and materiel. "452 Nuclear weapons are specifically excluded from the materiel that will be
prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national
security. If anything, EDCA increases the likelihood that, in an event requiring a defensive response,
the Philippines will be prepared alongside the U.S. to defend its islands and insure its territorial
integrity pursuant to a relationship built on the MDT and VFA.
8. Others issues and concerns raised
A point was raised during the oral arguments that the language of the MDT only refers to mutual help
and defense in the Pacific area.453 We believe that any discussion of the activities to be undertaken
under EDCA vis-a-vis the defense of areas beyond the Pacific is premature. We note that a proper
petition on that issue must be filed before we rule thereon. We also note that none of the petitions or
memoranda has attempted to discuss this issue, except only to theorize that the U.S. will not come
to our aid in the event of an attack outside of the Pacific. This is a matter of policy and is beyond the
scope of this judicial review.
In reference to the issue on telecommunications, suffice it to say that the initial impression of the
facility adverted to does appear to be one of those that require a public franchise by way of
congressional action under Section 11, Article XII of the Constitution. As respondents submit,
however, the system referred to in the agreement does not provide telecommunications services to
the public for compensation.454 It is clear from Article VIl(2) of EDCA that the telecommunication
system is solely for the use of the U.S. and not the public in general, and that this system will not
interfere with that which local operators use. Consequently, a public franchise is no longer necessary.
Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is entirely
speculative. It is noteworthy that the agreement in fact specifies that the prepositioned materiel shall
not include nuclear weapons.455Petitioners argue that only prepositioned nuclear weapons are
prohibited by EDCA; and that, therefore, the U.S. would insidiously bring nuclear weapons to
Philippine territory.456 The general prohibition on nuclear weapons, whether prepositioned or not, is
already expressed in the 1987 Constitution.457 It would be unnecessary or superfluous to include all
prohibitions already in the Constitution or in the law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption, which under the law must originate
from Congress. This allegation ignores jurisprudence on the government's assumption of tax liability.
EDCA simply states that the taxes on the use of water, electricity, and public utilities are for the
account of the Philippine Government.458 This provision creates a situation in which a contracting
party assumes the tax liability of the other. 459 In National Power Corporation v. Province of
Quezon, we distinguished between enforceable and unenforceable stipulations on the assumption of
tax liability. Afterwards, we concluded that an enforceable assumption of tax liability requires the
party assuming the liability to have actual interest in the property taxed. 460 This rule applies to EDCA,
since the Philippine Government stands to benefit not only from the structures to be built thereon or
improved, but also from the joint training with U.S. forces, disaster preparation, and the preferential
use of Philippine suppliers.461 Hence, the provision on the assumption of tax liability does not
constitute a tax exemption as petitioners have posited.
Additional issues were raised by petitioners, all relating principally to provisions already sufficiently
addressed above. This Court takes this occasion to emphasize that the agreement has been
construed herein as to absolutely disauthorize the violation of the Constitution or any applicable
statute. On the contrary, the applicability of Philippine law is explicit in EDCA.
EPILOGUE
The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted personalities
in Philippine history arises not so much from xenophobia, but from a genuine desire for self-
determination, nationalism, and above all a commitment to ensure the independence of the Philippine
Republic from any foreign domination.
Mere fears, however, cannot curtail the exercise by the President of the Philippines of his
Constitutional prerogatives in respect of foreign affairs. They cannot cripple him when he deems that
additional security measures are made necessary by the times. As it stands, the Philippines through
the Department of Foreign Affairs has filed several diplomatic protests against the actions of the
People's Republic of China in the West Philippine Sea; 462 initiated arbitration against that country
under the United Nations Convention on the Law of the Sea; 463 is in the process of negotiations with
the Moro Islamic Liberation Front for peace in Southern Philippines, 464 which is the subject of a current
case before this Court; and faces increasing incidents of kidnappings of Filipinos and foreigners
allegedly by the Abu Sayyaf or the New People's Army.465 The Philippine military is conducting reforms
that seek to ensure the security and safety of the nation in the years to come. 466 In the future, the
Philippines must navigate a world in which armed forces fight with increasing sophistication in both
strategy and technology, while employing asymmetric warfare and remote weapons.
Additionally, our country is fighting a most terrifying enemy: the backlash of Mother Nature. The
Philippines is one of the countries most directly affected and damaged by climate change. It is no
coincidence that the record-setting tropical cyclone Yolanda (internationally named Haiyan), one of
the most devastating forces of nature the world has ever seen hit the Philippines on 8 November
2013 and killed at least 6,000 people.467 This necessitated a massive rehabilitation project.468 In the
aftermath, the U.S. military was among the first to extend help and support to the Philippines.
That calamity brought out the best in the Filipinos as thousands upon thousands volunteered their
help, their wealth, and their prayers to those affected. It also brought to the fore the value of having
friends in the international community.
In order to keep the peace in its archipelago in this region of the world, and to sustain itself at the
same time against the destructive forces of nature, the Philippines will need friends. Who they are,
and what form the friendships will take, are for the President to decide. The only restriction is what
the Constitution itself expressly prohibits. It appears that this overarching concern for balancing
constitutional requirements against the dictates of necessity was what led to EDCA.
As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.
WHEREFORE, we hereby DISMISS the petitions.
SO ORDERED.