BAYAN v. ZAMORA (Executive Secretary)
When Congress so requires, such treaty should be ratified
October 10, 2000 | Puno (Dissenting Opinion)
Petitioner: Bayan, Junk VFA Movement, Bishop Tomas Millamena, Bishop
Elmer Bolocan, Dr. Reynaldo Legasca, Kilusang Mambubukid ng
Pilipinas, Kilusang Mayo Un, Gabriela, Polador, Public Interest
Law Center
Respondents: Executive Secretary Rolando Zamora, DFA Sec. Domingo Siazon,
Defense Secretary Orlando Mercado, Brig. Gen. Alexander
Aguirre, Senate President Marcelo Fernan, Sen. Franklin Drilon,
Sen. Blas Ople, Sen. Rodolfo Biazon, Sen. Francisco Tatad
NATURE
Special civil action for certiorari and prohibition
BRIEF
Petitioners assail the validity of the VFA (Visiting Forces Agreement)
which after having been ratified by Pres. Estrada was duly concurred
by the Senate, by a 2/3 vote of its members. They contend that the VFA
did not satisfy the requirement laid in Art XVIII, Sec 25 since US merely
treats it as an “executive agreement” rather than a “treaty.” As such, US
thinks that VFA does not need the ratification of the US Senate.
Main decision upheld the validity of the Visiting Forces Agreement.
Justice Puno dissents and believes that VFA is unconstitutional.
FACTS
No facts are narrated in the dissenting opinion. Justice Puno automatically
jumps to the issue.
MAIN ISSUE: WON the Visiting Forces Agreement (VFA) violates Art. XVIII, Sec 25 of the
Constitution1, (YES)
 3 Constitutional requisites that must be complied with before foreign
military bases, troops, or facilities can be allowed in the Philippine
territory
1. Their presence should be allowed by a treaty duly
concurred in by the Philippine Senate;
2Sec. 2, Art. II, Clause 2 of US Consti – the President shall have power, by and
with the advice and concurrence of the senate, to make treaties, provided two
thirds of the Sebators present concur.
2.
by majority of the votes cast by the Filipino people in a
national referendum held for the purpose;
3. Such treaty should be recognized as a treaty by the
other contracting party (NOTE: Please see sub-issue first
before going to the main issue. Medyo magulo
pagkakaorder ni Puno so I don’t know how to structure it
according to your outline)
 INTENT OF THE FRAMERS: The asymmetry in the 1947 RP-US Military
Bases Agreement, which was ratified by the Philippine Senate and not
by the US Senate was a slur to our sovereignty. The framers do not
want this anomalous asymmetry to be repeated that’s why Art
XVIII, Sec. 25 requires that the treaty allowing the presence of foreign
military bases, troops, and facilities should also be recognized as a
treaty by the other contracting party.
o The yardstick should be the US Constitutional Law2.
o In US practice, a “treaty” is only one of the four types of
international agreements: (1) Article II Treaties, (2) Executive
Agreements pursuant to a treaty, (3) Congressional Executive
Agreements, (4) sole executive agreements (VFA is more
akin to this)
o The term “executive agreement” is used as a convenient catch-
all to subsume all international agreements intended to bind
the US other than those which receive consent of 2/3 of US
Senate.
o The US Constitution does not expressly confer authority to
make these executive agreements, hence the authority to make
them, their scope, and legal force have been the subject of a
long on-going debate.
 FIRST VIEW: In the case of sole executive agreements,
commentators have been in general agreement that
unlike treaties, sole executive agreements cannot
prevail over prior inconsistent federal legislation. It is
doubtful whether, in the absence of appropriate
legislation, it may supersede a prior inconsistent
statute.
  SECOND VIEW: On the other hand, it is argued that o VFA does not provide for a specified and limited period of
when the US President enters into a sole executive effectivity. It instead provides an open-ended term3
agreement pursuant to his exclusive presidential o Both Black’s and Bouvier’s Law dictionaries’ definition of
authority in the field of foreign relations, such “permanent” does not necessarily contemplate absolute
agreement may prevail over prior inconsistent federal perpetuity. (as long as it continues for an indefinite period of
legislation. time)
 In conclusion, with the doubtful legal status of sole executive o Also, Art XVIII, Sec 18 contemplates both permanent and
agreements, the Court will be standing on unstable ground if it places a temporary presence of foreign military troops. HENCE, VFA
sole executive agreement like the VFA on the same constitutional regardless of WON permanent or temporary comes within its
plateau as a treaty. Questions remain and the debate continues on the purview.
constitutional basis as well as the legal effects of sole executive
agreements under US Law.
 In the words of Louis Henkin: “often the treaty process will be used
at the insistence of other parties to an agreement because they
believe that a treaty has greater ‘dignity’ than an executive
agreement, because its constitutional effectiveness is beyond
doubt, because a treaty will ‘commit’ the Senate and the people of
the US and make its subsequent abrogation or violation less likely.
 With the cloud of uncertainty still hanging on the exact legal force of
sole executive agreements under US Constitutional Law, this Court
must draw a bright line between the dignity and status of a treaty
in contrast with a sole executive agreement.

DISSENT: Petition should have been granted. VFA falls short of the requirement
set by Art XVIII, Sec 25 of the 1987 Constitution.

SUB-ISSUE:
Respondents: these constitutional requirements are not applicable to
the VFA.
o These requirements applies only to the stationing or
permanent presence since “troops” is mentioned along with
“bases” and “facilities” which are permanent in nature
o VFA contemplates merely temporary visits of US Military
Troops in Philippine territory
Justice Puno: VFA is of a permanent nature
o Neither the VFA nor the Mutual Defense Treaty provides the
slightest suggestion on the duration of the visits of U.S. Forces 3Art IX, VFA – this Agreement shall remain in force until the expiration of 180
in Philippine territory. days from the date on which either party gives the other party notice in writing
that it desires to terminate the agreement