Osmena v.

Pendatun

Summary Cases:

● Sergio Osmena, Jr. vs. Salipada K. Pendatun, et al., 109 Phil 863

Subject: Parliamentary Immunity, Disorderly Behavior

Facts:

The petitioner, in his privilege speech before the House of Representatives, accused the President of the
Philippines of selling things such as pardons at premium prices. For this, a resolution was passed by the
House which created a special committee to investigate the allegations made by the petitioner, and
ordered the petitioner go before the House to substantiate his claims, and if in in case he fails to do so,
to show cause why he should not be punished for his statements. Thus, petitioner filed a petition for
declaratory relief, certiorari and prohibition with preliminary injunction, against the members of the
committee tasked to investigate his allegations, on the ground that his parliamentary immunity would be
violated by the investigation and the orders issued against him.

Held:

Parliamentary Immunity

1. Section 15, Article VI of our Constitution provides that "for any speech or debate" in Congress, the
Senators or Members of the House of Representative "shall not be questioned in any other place."

2. This section was taken or is a copy of sec. 6, clause 1 of Art. 1 of the Constitution of the United States.
In that country, the provision has always been understood to mean that although exempt from
prosecution or civil actions for their words uttered in Congress, the members of Congress may,
nevertheless, be questioned in Congress itself. Observe that "they shall not be questioned in any other
place" than Congress.

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3. It guarantees the legislator complete freedom of expression without fear of being made responsible in
criminal or civil actions before the courts or any other forum outside of the Congressional Hall.

4. But is does not protect him from responsibility before the legislative body itself whenever his words
and conduct are considered by the latter disorderly or unbecoming a member thereof.

Disorderly Behavior

5. The House is the judge of what constitutes disorderly behavior, not only because the Constitution has
conferred jurisdiction upon it, but also because the matter depends mainly on factual circumstances of
which the House knows best but which can not be depicted in black and white for presentation to, and
adjudication by the Courts.

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Atong Paglaum vs Comelec (2013)

Summary Cases:

● Atong Paglaum, Inc. vs. Commission on Elections

Subject: Party-List System under the 1987 Constitution; Party-List system was intended to include even
non-sectoral organizations; Political party vs Sectoral party; National and Regional parties need NOT
represent the “marginalized and underrepresented” sectors, may be simply organized as political parties;
Not all sectoral parties must represent the “marginalized and underrepresented” sectors; “Marginalized
and Underrepresented” requirement shall be limited to sectors that by their nature are economically at
the margins of society; Major political parties could participate in party-list elections only through their
sectoral wings; Re-examination of the ruling in Ang Bagong Bayani and BANAT; New Parameters in
determining who are qualified to participate in the party-list elections

Facts:

These consolidated petitions were filed by 52 party-lists groups assailing the resolution issued by the
COMELEC disqualifying them from participating in the May 2013 party-list elections, either by denial of
their new petitions for registration under the party-list system, or by cancellation of their existing
registration and accreditation as party-list organizations. The SC issued Status Quo Ante Orders in all
petitions.

The SC is called upon to determine whether the criteria for participating in the party-list system laid down
in Ang Bagong Bayani vs. Comelec (BANAT case) should be applied by the COMELEC in the coming
May 2013 party-list elections.

Held:

Party-List System under the 1987 Constitution

1. The 1987 Constitution provides the basis for the party-list system of representation. Relevant
provisions are found in Section 5, Article VI and Sections 7 and 8, Article IX-C of the 1987 Constitution.

2. The party-list system is intended to democratize political power by giving political parties that cannot
win in legislative district elections a chance to win seats in the House of Representatives. The voter
elects two representatives in the House of Representatives: one for his or her legislative district, and
another for his or her party-list group or organization of choice

Party-List system was intended to include even non-sectoral organizations

3. Commissioner Christian S. Monsod, the main sponsor of the party-list system, stressed that “the
party-list system is not synonymous with that of the sectoral representation

4. The framers of the 1987 Constitution expressly rejected the proposal to make the party-list system
exclusively for sectoral parties only, and they clearly intended the party-list system to include both
sectoral and non-sectoral parties. The framers intended the sectoral parties to constitute a part, but not
the entirety, of the party-list system. In fact, the proposal to give permanent reserved seats to certain
sectors was outvoted.Instead, the reservation of seats to sectoral representatives was only allowed for
the first three consecutive terms.

5. Section 5(1), Article VI of the Constitution provides that there shall be “a party-list system of registered
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national, regional, and sectoral parties or organizations.” The commas separate national and regional
parties from sectoral parties. Had the framers of the 1987 Constitution intended national and regional
parties to be at the same time sectoral, they would have stated “national and regional sectoral parties.”
They did not, precisely because it was never their intention to make the party-list system exclusively
sectoral.

6. Thus, the party-list system is composed of three different groups: (1) national parties or
organizations; (2) regional parties or organizations; and (3) sectoral parties or organizations. National
and regional parties or organizations are different from sectoral parties or organizations. National and
regional parties or organizations need not be organized along sectoral lines and need not represent any
particular sector.

Political party vs Sectoral party

7. Republic Act No. 7941 or the Party-List System Act, which is the law that implements the party-list
system, defines a “party” as “either a political party or a sectoral party or a coalition of parties.” Clearly,
a political party is different from a sectoral party. Section 3(c) of R.A. No. 7941 further provides that a “
political party refers to an organized group of citizens advocating an ideology or platform, principles and
policies for the general conduct of government.” On the other hand, Section 3(d) of R.A. No. 7941
provides that a “sectoral party refers to an organized group of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns
of their sector.”

National and Regional parties need NOT represent the “marginalized and underrepresented”
sectors, may be simply organized as Political Parties

8. R.A. No. 7941 does not require national and regional parties or organizations to represent the
“marginalized and underrepresented” sectors. To require all national and regional parties under the
party-list system to represent the “marginalized and underrepresented” is to deprive and exclude, by
judicial fiat, ideology-based and cause-oriented parties from the party-list system. To exclude them from
the party list system is to prevent them from joining the parliamentary struggle, leaving as their only
option the armed struggle. To exclude them from the party-list system is patently contrary to the clear
intent and express wording of the 1987 Constitution and R.A. No. 7941.

9. Under the party-list system, an ideology-based or cause-oriented political party is clearly different from
a sectoral party. A political party need not be organized as a sectoral party and need not represent any
particular sector. There is no requirement in R.A. No. 7941 that a national or regional political party must
represent a “marginalized and underrepresented” sector. It is sufficient that the political party consists of
citizens who advocate the same ideology or platform, or the same governance principles and policies,
regardless of their economic status as citizens.

Not all sectoral parties must represent the “marginalized and underrepresented” sectors

10. Section 5 of R.A. No. 7941 states that “the sectors shall include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and
professionals.”The sectors mentioned in Section 5 are not all necessarily “marginalized and
underrepresented.” For sure, “professionals” are not by definition “marginalized and underrepresented,”
not even the elderly, women, and the youth. However, professionals, the elderly, women, and the youth
may “lack well-defined political constituencies,” and can thus organize themselves into sectoral parties in
advocacy of the special interests and concerns of their respective sectors.

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11. The phrase “marginalized and underrepresented” appears only once in R.A. No. 7941, in Section 2
on Declaration of Policy. While the policy declaration in Section 2 of R.A. No. 7941 broadly refers to
“marginalized and underrepresented sectors, organizations and parties,” the specific implementing
provisions of R.A. No. 7941 do not define or require that the sectors, organizations or parties must be
“marginalized and underrepresented.”

“Marginalized and Underrepresented” requirement shall be limited to sectors that by their nature
are economically at the margins of society

12. The phrase “marginalized and underrepresented” should refer only to the sectors in Section 5 that
are, by their nature, economically “marginalized and underrepresented.” These sectors are: labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, veterans, overseas workers, and other
similar sectors. For these sectors, a majority of the members of the sectoral party must belong to the
“marginalized and underrepresented.” The nominees of the sectoral party either must belong to the
sector, or must have a track record of advocacy for the sector represented. Belonging to the
“marginalized and underrepresented” sector does not mean one must “wallow in poverty, destitution or
infirmity.” It is sufficient that one, or his or her sector, is below the middle class. More specifically, the
economically “marginalized and underrepresented” are those who fall in the low income group as
classified by the National Statistical Coordination Board.

13. The recognition that national and regional parties, as well as sectoral parties of professionals, the
elderly, women and the youth, need not be “marginalized and underrepresented” will allow small
ideology-based and cause-oriented parties who lack “well-defined political constituencies” a chance to
win seats in the House of Representatives. On the other hand, limiting to the “marginalized and
underrepresented” the sectoral parties for labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, overseas workers, and other sectors that by their nature are
economically at the margins of society, will give the “marginalized and underrepresented” an opportunity
to likewise win seats in the House of Representatives.

14. This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and will give rise to a
multi-party system where those “marginalized and underrepresented,” both in economic and
ideological status, will have the opportunity to send their own members to the House of Representatives.

Major political parties could participate in party-list elections only through their sectoral wings

15. The major political parties are those that field candidates in the legislative district elections. Major
political parties cannot participate in the party-list elections since they neither lack “well-defined
political constituencies” nor represent “marginalized and underrepresented” sectors.

16. Thus, the national or regional parties under the party-list system are necessarily those that do not
belong to major political parties. This automatically reserves the national and regional parties under the
party-list system to those who “lack well-defined political constituencies,” giving them the opportunity to
have members in the House of Representatives.

17. However, major political parties could participate in party-list elections only through their
sectoral wings. The participation of major political parties through their sectoral wings, a majority of
whose members are “marginalized and underrepresented” or lacking in “well-defined political
constituencies,” will facilitate the entry of the “marginalized and underrepresented” and those who “lack
well-defined political constituencies” as members of the House of Representatives.

18. Thus, to participate in party-list elections, a major political party that fields candidates in the
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legislative district elections must organize a sectoral wing, like a labor, peasant, fisherfolk, urban poor,
professional, women or youth wing, that can register under the party-list system.

19. Such sectoral wing of a major political party must have its own constitution, by-laws, platform or
program of government, officers and members, a majority of whom must belong to the sector
represented. The sectoral wing is in itself an independent sectoral party, and is linked to a major political
party through a coalition. This linkage is allowed by Section 3 of R.A. No. 7941, which provides that
“component parties or organizations of a coalition may participate independently (in party-list elections)
provided the coalition of which they form part does not participate in the party-list system.”

20. A party-list nominee must be a bona fide member of the party or organization which he or she seeks
to represent. In the case of sectoral parties, to be a bona fide party-list nominee one must either belong
to the sector represented, or have a track record of advocacy for such sector.

Re-examination of the ruling in Ang Bagong Bayani and BANAT

21. In disqualifying petitioners, the COMELEC used the criteria prescribed in Ang Bagong Bayani and
BANAT. Ang Bagong Bayani laid down the guidelines qualifying those who desire to participate in the
party-list system. Notably, major political parties were allowed to participate in party-list elections. In
2009, by a vote of 8-7 in BANAT, the majority officially excluded major political parties from participating
in party-list elections. The minority in BANAT, however, believed that major political parties can
participate in the party-list system through their sectoral wings.

22. We cannot, however, fault the COMELEC for following prevailing jurisprudence in disqualifying
petitioners. In following prevailing jurisprudence, the COMELEC could not have committed grave abuse
of discretion. However, for the coming 13 May 2013 party-list elections, we must now impose and
mandate the party-list system actually envisioned and authorized under the 1987 Constitution and R.A.
No. 7941. We declare that it would not be in accord with the 1987 Constitution and R.A. No. 7941 to
apply the criteria in Ang Bagong Bayani and BANAT in determining who are qualified to participate in the
coming 13 May 2013 party-list elections.

23. The COMELEC excluded from participating in the 13 May 2013 partylist elections those that did not
satisfy these two criteria: (1) all national, regional, and sectoral groups or organizations must represent
the “marginalized and underrepresented” sectors, and (2) all nominees must belong to the “marginalized
and underrepresented” sector they represent. Petitioners may have been disqualified by the COMELEC
because as political or regional parties they are not organized along sectoral lines and do not represent
the “marginalized and underrepresented.” Also, petitioners' nominees who do not belong to the sectors
they represent may have been disqualified, although they may have a track record of advocacy for their
sectors. Likewise, nominees of non-sectoral parties may have been disqualified because they do not
belong to any sector. Moreover, a party may have been disqualified because one or more of its
nominees failed to qualify, even if the party has at least one remaining qualified nominee. As discussed
above, the disqualification of petitioners, and their nominees, under such circumstances is contrary to
the 1987 Constitution and R.A. No. 7941.

New Parameters in determining who are qualified to participate in the party-list elections

24. Thus, we remand all the present petitions to the COMELEC. In determining who may participate in
the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the
following parameters:

1. Three different groups may participate in the party-list system: (1) national parties or
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organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to organize
along sectoral lines and do not need to represent any “marginalized and underrepresented” sector.

3. Political parties can participate in party-list elections provided they register under the party-list
system and do not field candidates in legislative district elections. A political party, whether major
or not, that fields candidates in legislative district elections can participate in party list elections
only through its sectoral wing that can separately register under the party-list system. The sectoral
wing is by itself an independent sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be “marginalized and underrepresented” or lacking

in “well-defined political constituencies.” It is enough that their principal advocacy pertains to the
special interest and concerns of their sector. The sectors that are “marginalized and
underrepresented” include labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
handicapped, veterans, and overseas workers. The sectors that lack “well-defined political
constituencies” include professionals, the elderly, women, and the youth. 5. A majority of the
members of sectoral parties or organizations that represent the “marginalized and
underrepresented” must belong to the “marginalized and underrepresented” sector they represent.
Similarly, a majority of the members of sectoral parties or organizations that lack “well-defined
political constituencies” must belong to the sector they represent. The nominees of sectoral parties
or organizations that represent the “marginalized and underrepresented,” or that represent those
who lack “well-defined political constituencies,” either must belong to their respective sectors, or
must have a track record of advocacy for their respective sectors. The nominees of national and
regional parties or organizations must be bona-fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of their
nominees are disqualified, provided that they have at least one nominee who remains qualified.

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Araullo vs Aquino (2014)

Summary Cases:

● Araullo v Aquino [DECISION]

Subject:

Judicial Review; Mootness; Locus Standi; Philippine Budget System; Public Expenditures; Public
Revenue; Appropriation vs. Allotment; NCA vs. SARO; DAP; Section 25(5) and Section 29(1) of Article
VI of the 1987 Constitution; First requisite (GAAs of 2011 and 2012 lacked valid provisions to authorize
transfers of funds under the DAP; hence, transfers under the DAP were unconstitutional); Second
requisite (There were no savings from which funds could be sourced for the DAP); Third requisite (No
funds from savings could be transferred under the DAP to augment deficient items not provided in the
GAA); Third requisite (Cross border augmentations from savings were prohibited by the Constitution);
Impoundment; Sourcing the DAP from unprogrammed funds despite the original revenue targets not
having been exceeded was invalid;Equal protection; Public accountability; Doctrine of Operative Fact

Facts:

Consolidated petitions assail the constitutionality of the Disbursement Acceleration Program (DAP),
National Budget Circular (NBC) No. 541, and related issuances of the Department of Budget and
Management (DBM) implementing the DAP.

The controversy stemmed from a privilege speech delivered by Senator Jinggoy Estrada to reveal that
some Senators, including himself, had been allotted an additional P50 Million each as “incentive” for
voting in favor of the impeachment of Chief Justice Renato Corona.

In response, DBM Secretary Florencio Abad issued a public statement explaining that the funds released
to the Senators had been part of the DAP, a program designed by the DBM to ramp up spending to
accelerate economic expansion. He clarified that the funds had been released to the Senators based on
their letters of request for funding and that the DAP releases had been sourced from savings generated
by the Government, and from unprogrammed funds.

Petitioners allege that the DAP, being actually an appropriation that sets aside public funds for public use,
should require an enabling law for its validity. However, Congress never enacted a law to establish the
DAP nor to authorize release of public funds to implement the DAP. Thus, it is contended that DAP
contravenes Section 29(1) of Article VI of the 1987 Constitution which states that “[n]o money shall be
paid out of the Treasury except in pursuance of an appropriation made by law”

The OSG posits, however, that no law was necessary for the adoption and implementation of the DAP
because of its being neither a fund nor an appropriation, but a program or an administrative system of
prioritizing spending; and that the adoption of the DAP was by virtue of the authority of the President as
the Chief Executive to ensure that laws were faithfully executed

The DBM also cited as legal bases for the DAP’s use of savings (a) Section 25(5), Article VI of the 1987
Constitution, which granted to the President the authority to augment an item for his office in the general
appropriations law (b) various sections of EO 292 (Administrative Code of 1987); and (c) the General
Appropriations Acts of 2011, 2012 and 2013, particularly their provisions on the use of savings.

Held:

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 I. Procedural Issues

Judicial Review

1. Judicial power as defined under [Section1, Art 8] of the 1987 Constitution includes the duty of the
courts of justice not only “to settle actual controversies involving rights which are legally demandable and
enforceable” but also “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.” It has
thereby expanded the concept of judicial power.

2. The requisites for the exercise of the power of judicial review are the following, namely: (1) there must
be an actual case or justiciable controversy before the Court; (2) the question before the Court must be
ripe for adjudication; (3) the person challenging the act must be a proper party; and (4) the issue of
constitutionality must be raised at the earliest opportunity and must be the very litis mota of the case

(a) The incompatibility of the perspectives of the parties on the constitutionality of the DAP and its
relevant issuances satisfy the requirement for a conflict between legal rights. Hence, an actual and
justiciable controversy exists .

(b) The issues being raised meet the requisite ripeness considering that the challenged executive acts
were already being implemented by the DBM.

(c) as citizens and taxpayers, petitioners have sufficient interest in the outcome of the controversy as to
confer locus standi on each of them. Moreover, the issues involve matters of transcendental importance.

Mootness

3. A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.

4. The Court cannot agree that the termination of the DAP as a program was a supervening event that
effectively mooted these consolidated cases. Verily, the Court had in the past exercised its power of
judicial review despite the cases being rendered moot and academic by supervening events, like: (1)
when there was a grave violation of the Constitution; (2) when the case involved a situation of
exceptional character and was of paramount public interest; (3) when the constitutional issue raised
required the formulation of controlling principles to guide the Bench, the Bar and the public; and (4) when
the case was capable of repetition yet evading review.

Locus Standi

5. Legal standing, as a requisite for the exercise of judicial review, refers to “a right of appearance in a
court of justice on a given question.”

6. The Court has adopted the direct injury test for determining whether a petitioner in a public action has
locus standi, i.e., the person who would assail the validity of a statute must have “a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury as a result.”

7. The requirement of locus standi, being a mere procedural technicality, can be waived by the Court in
the exercise of its discretion.

II. Substantive Issues

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Budget System

8. Under Republic Act No. 992 (Revised Budget Act) the term 'budget' is described as the services and
products, or benefits that would accrue to the public together with the estimated unit cost of each type of
service, product or benefit.

9. The Philippine Budget System is guided by two principal objectives that are vital to the development of
a progressive democratic government, namely: (1) to carry on all government activities under a
comprehensive fiscal plan developed, authorized and executed in accordance with the Constitution,
prevailing statutes and the principles of sound public management; and (2) to provide for the periodic
review and disclosure of the budgetary status of the Government in such detail so that persons entrusted
by law with the responsibility as well as the enlightened citizenry can determine the adequacy of the
budget actions taken, authorized or proposed, as well as the true financial position of the Government.

10. The Philippine budget process is comprised of four phases. Each phase is distinctly separate from
the others but they overlap in the implementation of the budget during the budget year. These are:

(a) Budget Preparation— government agencies prepare and submit their budget proposals in
response to a Budget Call by the DBM.

(b) Budget Legislation— also known as the Budget Authorization Phase, and involves the
participation of both legislative houses through its deliberations and culminates in the passing of a
General Appropriations Act.

(c) Budget Execution— this phase is primarily the function of the DBM, which is tasked to: (1)
issue the programs and guidelines for the release of funds; (2) prepare an Allotment and Cash
Release Program (3) release allotments; and (4) issue disbursement authorities. Actual
disbursement or spending of government funds terminates the Budget Execution Phase.

(d) Accountability— An agency’s accountability may be examined and evaluated through (1)
performance targets and outcomes; (2) budget accountability reports; (3)review of agency
performance; and (4) audit conducted by the Commission on Audit (COA).

Public Expenditures

11. Public or government expenditures are generally classified into two categories, specifically:

(a) Capital expenditures or outlays: the expenses whose usefulness lasts for more than one year,
and which add to the assets of the Government, including investments in the capital of GOCCs
and their subsidiaries.

(b) Current operating expenditures: the purchases of goods and services in current consumption
the benefit of which does not extend beyond the fiscal year. The two components of current
expenditures are those for personal services (PS), and those for maintenance and other operating
expenses (MOOE).

12. Public expenditures are also broadly grouped according to their functions into:

(a) economic development expenditures (i.e.,expenditures on agriculture and natural resources,

transportation and communications, commerce and industry, and other economic development
efforts);
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 (b) social services or social development expenditures (i.e., government outlay on education,
public health and medicare, labor and welfare and others);

(c) general government or general public services expenditures (i.e., expenditures for the general
government, legislative services, the administration of justice, and for pensions and gratuities);

(d) national defense expenditures (i.e., sub-divided into national security expenditures and
expenditures for the maintenance of peace and order); and

(e) public debt

13. Public expenditures may further be classified according to the nature of funds:

(a) general fund,

(b) special fund
(c) bond fund

Public Revenues

14. Public revenues cover all income or receipts of the government treasury used to support government
expenditures.

15. Public revenues are classified as either:

(a) General Income (service income, forex gains, donations, etc) or

(b) Specific Income (taxes, fines)

16. In the Philippines, public revenues are generally derived from the following sources, to wit:

(1) tax revenues (i.e., compulsory contributions to finance government activities);

(2) capital revenues (i.e., proceeds from sales of fixed capital assets or scrap thereof and public
domain, and gains on such sales like sale of public lands, buildings and other structures,
equipment, and other properties recorded as fixed assets);

(3) grants (i.e., voluntary contributions and aids given to the Government for its operation on
specific purposes in the form of money and/or materials, and do not require any monetary
commitment on the part of the recipient);

(4) extra-ordinary income (i.e., repayment of loans and advances made by government
corporations and local governments and the receipts and shares in income of the Banko Sentral
ng Pilipinas, and other receipts); and

(5) public borrowings (i.e., proceeds of repayable obligations generally with interest from domestic
and foreign creditors of the Government in general, including the National Government and its
political subdivisions)

Appropriation vs Allotments

17. Appropriation is the act by which Congress “designates a particular fund, or sets apart a specified
portion of the public revenue or of the money in the public treasury, to be applied to some general object
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of governmental expenditure, or to some individual purchase or expense.”

18. Allotments, which authorize an agency to enter into obligations, are issued by the DBM. Allotments
are lesser in scope than appropriations, in that the latter embrace the general legislative authority to
spend. Allotments may be released in two forms – through a comprehensive Agency Budget Matrix
(ABM), or, individually, by Special Allotment Release Order (SARO).

NCA vs SARO

19. In order to settle the obligations incurred by the agencies, the DBM issues a disbursement authority
so that cash may be allocated in payment of the obligations. A cash or disbursement authority that is
periodically issued is referred to as a Notice of Cash Allocation (NCA), which issuance is based upon an
agency’s submission of its Monthly Cash Program and other required documents. The NCA specifies the
maximum amount of cash that can be withdrawn from a government servicing bank for the period
indicated.

20. A SARO, as defined by the DBM itself in its website, is “[a] specific authority issued to identified
agencies to incur obligations not exceeding a given amount during a specified period for the purpose
indicated. It shall cover expenditures the release of which is subject to compliance with specific laws or
regulations, or is subject to separate approval or clearance by competent authority.”

21. Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation
and not the directive to pay. Practically speaking, the SARO does not have the direct and immediate
effect of placing public funds beyond the control of the disbursing authority. In fact, a SARO may even be
withdrawn under certain circumstances which will prevent the actual release of funds. On the other hand,
the actual release of funds is brought about by the issuance of the Notice of Cash Allotment (NCA),
which is subsequent to the issuance of a SARO. (Belgica v. Executive Secretary)

DAP

22. DAP was designed as a stimulus package intended to fast-track public spending and to push
economic growth by investing on high-impact budgetary PAPs (program, activity or project) to be funded
from the “savings” generated during the year as well as from unprogrammed funds.

DAP is not an appropriation measure; hence, no appropriation law is required to adopt or to

implement it

23. In the context of the DAP’s adoption and implementation being a function pertaining to the Executive
as the main actor during the Budget Execution Stage under its constitutional mandate to faithfully
execute the laws, including the GAAs, Congress did not need to legislate to adopt or to implement the
DAP. Congress could appropriate but would have nothing more to do during the Budget Execution Stage.

24. The President, in keeping with his duty to faithfully execute the laws, had sufficient discretion during
the execution of the budget to adapt the budget to changes in the country’s economic situation. He could
adopt a plan like the DAP for the purpose. He could pool the savings and identify the PAPs to be funded
under the DAP. The pooling of savings pursuant to the DAP, and the identification of the PAPs to be
funded under the DAP did not involve appropriation in the strict sense because the money had been
already set apart from the public treasury by Congress through the GAAs. In such actions, the Executive
did not usurp the power vested in Congress under Section 29(1), Article VI of the Constitution.

Section 25(5), Article VI of the Constitution

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25. Section 25(5) of Article VI provides:

“No law shall be passed authorizing any transfer of appropriations; however, the President, the President
of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court,
and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the
general appropriations law for their respective offices from savings in other items of their respective
appropriations.” (emphasis and underscoring supplied)

26. We should interpret Section 25(5), in the context of a limitation on the President’s discretion over the
appropriations during the Budget Execution Phase

27. The transfer of appropriated funds, to be valid under Section 25(5), must be made upon a
concurrence of the following requisites, namely:

(a) There is a law authorizing the President, the President of the Senate, the Speaker of the House
of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices;

(b) The funds to be transferred are savings generated from the appropriations for their respective
offices; and

(c) The purpose of the transfer is to augment an item in the general appropriations law for their
respective offices.

First requisite (GAAs of 2011 and 2012 lacked valid provisions to authorize transfers of funds
under the DAP; hence, transfers under the DAP were unconstitutional)

28. Section 25(5), not being a self-executing provision of the Constitution, must have an implementing
law for it to be operative. That law, generally, is the GAA of a given fiscal year. To comply with the first
requisite, the GAAs should expressly authorize the transfer of funds.

29. The relevant provisions in the 2011 and 2012 GAA which were cited as basis by the DBM for the
transfer of funds provides:

“the President xxx hereby authorized to augment any item in this Act from savings in other items of their
respective appropriations.”

30. The provision of the GAAs of 2011 and 2012 were textually unfaithful to the Constitution for not
carrying the phrase “for their respective offices” contained in Section 25(5). The impact of the phrase “for
their respective offices” was to authorize only transfers of funds within their offices (i.e., in the case of the
President, the transfer was to an item of appropriation within the Executive). The provisions carried a
different phrase (“to augment any item in this Act”), and the effect was that the 2011 and 2012 GAAs
thereby literally allowed the transfer of funds from savings to augment any item in the GAAs even if the
item belonged to an office outside the Executive. To that extent the 2011 and 2012 GAAs contravened
the Constitution. At the very least, the aforequoted provisions cannot be used to claim authority to
transfer appropriations from the Executive to another branch, or to a constitutional commission.

Second requisite (There were no savings from which funds could be sourced for the DAP)

31. Savings should be actual. The court construes savings strictly against expanding the scope of the
power to augment. The power to augment was to be used only when the purpose for which the funds
| Page 6 of 9
had been allocated were already satisfied, or the need for such funds had ceased to exist, for only then
could savings be properly realized. This interpretation prevents the Executive from unduly transgressing
Congress’ power of the purse.

32. Unreleased appropriations and withdrawn unobligated allotments under the DAP were not savings,
and the use of such appropriations contravened Section 25(5), Article VI of the 1987 Constitution.

33. Unreleased appropriations refer to appropriations with allotments but without disbursement authority.

34. The balances of appropriations that remained unexpended at the end of the fiscal year were to be
reverted to the General Fund. This was the mandate of Section 28, Chapter IV, Book VI of the
Administrative Code. The Executive could not circumvent this provision by declaring unreleased
appropriations and unobligated allotments as savings prior to the end of the fiscal year.

Third requisite (No funds from savings could be transferred under the DAP to augment deficient
items not provided in the GAA)

35. It appears that the “savings” pooled under the DAP were allocated to PAPs that were not covered by
any appropriations in the pertinent GAAs. Any PAP requiring expenditure that did not receive any
appropriation under the GAAs could only be a new PAP, any funding for which would go beyond the
authority laid down by Congress in enacting the GAAs.

36. Although the Executive was authorized to spend in line with its mandate to faithfully execute the laws
(which included the GAAs), such authority did not translate to unfettered discretion that allowed the
President to substitute his own will for that of Congress. He was still required to remain faithful to the
provisions of the GAAs, given that his power to spend pursuant to the GAAs was but a delegation to him
from Congress. Verily, the power to spend the public wealth resided in Congress, not in the Executive.

Third requisite (Cross border augmentations from savings were prohibited by the Constitution)

37. By providing that the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the Heads of the Constitutional
Commissions may be authorized to augment any item in the GAA “for their respective offices,” Section
25(5) has delineated borders between their offices, such that funds appropriated for one office are p
ohibited from crossing over to another office even in the guise of augmentation of a deficient item or
items. Thus, we call such transfers of funds cross-border transfers or cross-border augmentations.

38. Cross-border transfers, whether as augmentation, or as aid, are prohibited under Section 25(5)

39. It appears that DAP funds were transferred to the COA (P143.7 Million) and House of Representative
(P250 Million) Those transfers of funds, being from the Executive, constituted cross-border
augmentations.

Impoundment

40. Impoundment refers to a refusal by the President, for whatever reason, to spend funds made
available by Congress. It is the failure to spend or obligate budget authority of any type. (Philconsa vs
Enriquez)

41. The withdrawal of unobligated allotments under the DAP should not be regarded as impoundment
because it entailed only the transfer of funds, not the retention or deduction of appropriations.
| Page 7 of 9
Sourcing the DAP from unprogrammed funds despite the original revenue targets not having
been exceeded was invalid

42. The unprogrammed funds were treated as separate sources of funds. Even so, the release and use
of the unprogrammed funds were still subject to restrictions for the GAAs precisely specified the
instances when the unprogrammed funds could be released and the purposes for which they could be
used.

43. Unprogrammed appropriations are appropriations that provided standby authority to incur additional
agency obligations for priority PAPs when revenue collections exceeded targets, and when additional
foreign funds are generated.

44. Contrary to DBM's claims, the collection of additional revenues from new sources did not warrant the
release of the unprogrammed funds. Hence, even if the revenues not considered in the BESFs were
collected or generated, the basic condition that the revenue collections should exceed the revenue
targets must still be complied with in order to justify the release of the unprogrammed funds. That there
were additional revenues from sources not considered in the revenue target would not be enough. The
total revenue collections must still exceed the original revenue targets to justify the release of the
unprogrammed funds (other than those from newly-approved foreign loans).

45. The revenue targets should be considered as a whole, not individually; otherwise, we would be
dealing with artificial revenue surpluses. The requirement that revenue collections must exceed revenue
target should be understood to mean that the revenue collections must exceed the total of the revenue
targets stated in the BESF.

Equal protection

46. The claim that the Executive discriminated against some legislators on the ground alone of their
receiving less than the others could not of itself warrant a finding of contravention of the Equal Protection
Clause. The denial of equal protection of any law should be an issue to be raised only by parties who
supposedly suffer it, and, in these cases, such parties would be the few legislators claimed to have been
discriminated against in the releases of funds under the DAP. The reason for the requirement is that only
such affected legislators could properly and fully bring to the fore when and how the denial of equal
protection occurred, and explain why there was a denial in their situation.

Public accountability

47. Anent the principle of public accountability being transgressed because the adoption and
implementation of the DAP constituted an assumption by the Executive of Congress’ power of
appropriation, we have already held that the DAP and its implementing issuances were policies and acts
that the Executive could properly adopt and do in the execution of the GAAs to the extent that they
sought to implement strategies to ramp up or accelerate the economy of the country.

Doctrine of Operative Fact

48. The doctrine of operative fact recognizes the existence of the law or executive act prior to the
determination of its unconstitutionality as an operative fact that produced consequences that cannot
always be erased, ignored or disregarded. In short, it nullifies the void law or executive act but sustains
its effects. It provides an exception to the general rule that a void or unconstitutional law produces no
effect. But its use must be subjected to great scrutiny and circumspection, and it cannot be invoked to
validate an unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play.
| Page 8 of 9
It applies only to cases where extraordinary circumstances exist, and only when the extraordinary
circumstances have met the stringent conditions that will permit its application.

49. The doctrine of operative fact applicable to the adoption and implementation of the DAP. The
doctrine of operative fact extends to a void or unconstitutional executive act. The term executive act is
broad enough to include any and all acts of the Executive, including those that are quasi-legislative and
quasi-judicial in nature. The term ‘executive act’ is broad enough to encompass decisions of
administrative bodies and agencies under the executive department which are subsequently revoked by
the agency in question or nullified by the Court. (Hacienda Luisita, Inc. v. Presidential Agrarian Reform
Council, G.R. No. 171101, November 22, 2011)

50. The doctrine of operative fact can apply only to the PAPs that can no longer be undone, and whose
beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents
and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper
tribunals determining their criminal, civil, administrative and other liabilities

| Page 9 of 9
Senate v. Ermita

Summary Cases:

● Senate of the Philippines vs. Ermita 488 SCRA 1

Subject:

Judicial Review (requisites of Standing and Actual Controversy), Executive Privilege, Inquiry in aid of
legislation (Art VI, Sec 21) vs. Question hour (Art VI, Sec 22), Right to information, Publication
Requirement

Facts:

The Senate issued invitations to various Executive Department officials for them to appear as resource
speakers in a public hearing to investigate the alleged overpricing and other unlawful provisions of the
contract covering the North Rail Project. The Senate Committee on National Defense likewise issued
invitations to AFP officials to be resource persons in a senate investigation hearing.

On September 28, 2005, a day before the scheduled Senate hearing, President Arroyo issued E.O. 464
which, pursuant thereto, took effect immediately. EO 464, invoking executive privilege as basis, provides
that: ?all heads of departments of the Executive Branch of the government shall secure the consent of
the President prior to appearing before either House of Congress.?

Senate President Drilon received a letter from Executive Secretary Ermita that the invited officials will not
be able to attend without the President?s consent, pursuant to EO 464.

Held: Sec 1 of EO 464 is valid on its face.

Sec 3 and Sec 2(b) of EO 464 are unconstitutional.

Judicial Review, Standing

1. The Senate, including its individual members, has a substantial and direct interest over the outcome of
the controversy and is the proper party to assail the constitutionality of E.O. 464. Indeed, legislators have
standing to maintain inviolate the prerogative, powers and privileges vested by the Constitution in their
office and are allowed to sue to question the validity of any official action which they claim infringes their
prerogatives as legislators.

| Page 1 of 6
2. In the same vein, party-list representatives have standing to question the constitutionality of E.O. 464,
it being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and duties as
members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the
implementation of laws.

Judicial Review, Standing as Citizens

3. IBP members and other organizations claim that EO 464 violates their constitutional right to
information as citizens.

4. It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal.
When the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies
the requirement of personal interest.

Judicial Review, Standing based on Transcendental Importance

5. To be accorded standing on the ground of transcendental importance, it must establish: (1) the case
involves the disbursement of public funds or assets, (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 party with a more direct and specific interest in raising the questions
being raised.

6. PDP-Laban's alleged interest as a political party does not suffice to clothe it with legal standing on the
ground of transcendental importance. No public funds or assets are involved and other petitioners have
shown direct and specific interests in the controversy. Its allegation that E.O. 464 hampers its legislative
agenda is only a "generalized interest" which it shares with the rest of the political parties. Concrete
injury, whether actual or threatened, is absent.

Judicial Review, Actual Case or Controversy

7. That the officials merely communicated to the Senate that they have not yet secured the consent of
the President and the President has not actually withheld her consent or prohibited the appearance of
the officials concerned is immaterial in determining the existence of an actual case or controversy. For
E.O. 464 does not require either a deliberate withholding of consent or an express prohibition issuing
from the President in order to bar officials from appearing before Congress. The implementation of the
challenged order has already resulted in the absence of officials invited to the hearings of petitioner
Senate of the Philippines

Executive Privilege

| Page 2 of 6
8. Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of
inquiry, which exemptions fall under the rubric of "executive privilege."

9. Schwartz defines executive privilege as "the power of the Government to withhold information from the
public, the courts, and the Congress."

10. According to Tribe, executive privilege come in a variety of forms:

a) state secrets privilege: invoked by U.S. Presidents on the ground that the information is of such nature
that its disclosure would subvert crucial military or diplomatic objectives.

b) informer's privilege, or the privilege of the Government not to disclose the identity of persons who
furnish information of violations of law to officers charged with the enforcement of that law.

c) generic privilege for internal deliberations has been said to attach to intra-governmental documents
reflecting advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.

11. Executive privilege is properly invoked in relation to specific categories of information and not to
categories of persons. Executive officials are not exempt from the duty to disclose information by the
mere fact of being executive officials. Executive privilege, whether asserted against Congress, the courts,
or the public, is recognized only in relation to certain types of information of a sensitive character. A
claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it
is made. That a type of information is recognized as privileged does not necessarily mean that it would
be considered privileged in all instances.

12. Neri vs. Senate: 2 types of executive privilege: (1) presidential communication privilege and (2)
deliberative process privilege

Article VI, Sec 21 (inquiry in aid of legislation) vs. Sec 22 (question hour)

13. While both powers allow Congress or any of its committees to conduct inquiry, their objectives are
different.

Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that
may be used for legislation.
Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain
information in pursuit of Congress' oversight function.
| Page 3 of 6
14. With regard to the use of compulsory process, Congress can compel the appearance of executive
officials under Section 21, but NOT under Section 22.

15. When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are
department heads. Only one executive official may be exempted from this power - the President on
whom executive power is vested, hence, beyond the reach of Congress except through the power of
impeachment.

16. Members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency,
judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only
of separation of powers but also on the fiscal autonomy and the constitutional independence of the
judiciary.

Validity of Sec 1, EO 464

17. Section 1 must be construed as limited in its application to appearances of department heads in the
question hour. The requirement then to secure presidential consent under Section 1, limited as it is only
to appearances in the question hour, is valid on its face. For under Section 22, the appearance of
department heads in the question hour is discretionary on their part.

18. Section 1 cannot be applied to appearances of department heads in inquiries in aid of legislation.
Congress is not bound in such instances to respect the refusal of the department head to appear in such
inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the
Executive Secretary.

Validity of Sec 3, EO 464

19. Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The enumeration covers all
senior officials of executive departments, all officers of the AFP and the PNP, and all senior national
security officials who are "covered by the executive privilege." The enumeration also includes such other
officers as may be determined by the President.

20. Sec. 3 actually creates an implied claim of privilege. Underlying the requirement of prior consent is
the determination by a head of office, authorized by the President under E.O. 464, or by the President
herself, that such official is in possession of information that is covered by executive privilege. This
determination then becomes the basis for the official's not showing up in the legislative investigation until
and unless the required consent is first secured. The proviso allowing the President to give its consent
| Page 4 of 6
means nothing more than that the President may reverse a prohibition which already exists by virtue of
E.O. 464.

21. A claim of privilege must clearly state the grounds therefor. While Section 2(a) enumerates the types
of information that are covered by the privilege under the challenged order, Congress is left to speculate
as to which among them is being referred to by the executive. It does not suffice to merely declare that
the President, or an authorized head of office, has determined that it is so, and that the President has not
overturned that determination.

22. The privilege being, by definition, an exemption from the obligation to disclose information, in this
case to Congress, the necessity must be of such high degree as to outweigh the public interest in
enforcing that obligation in a particular case. Congress undoubtedly has a right to information from the
executive branch whenever it is sought in aid of legislation. If the executive branch withholds such
information on the ground that it is privileged, it must so assert it and state the reason therefore and why
it must be respected. The infirm provisions of EO 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right to do so and/or proffering
its reasons therefore. By the mere expedient of invoking said provisions, the power of Congress to
conduct inquiries in aid of legislation is frustrated.

23. In light of the highly exceptional nature of the privilege, it is essential to limit to the President the
power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the
privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of
the President," which means that he personally consulted with her. The privilege being an extraordinary
power, it must be wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power. There is even less reason to
uphold such authorization in the instant case where the authorization is not explicit but by mere silence.
Section 3, in relation to Section 2(b), is further invalid on this score.

Right to information

24. There are clear distinctions between the right of Congress to information which underlies the power
of inquiry and the right of the people to information on matters of public concern. For one, the demand of
a citizen for the production of documents pursuant to his right to information does not have the same
obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information
grant a citizen the power to exact testimony from government officials. These powers belong only to
Congress and not to an individual citizen.

25. To the extent that investigations in aid of legislation are generally conducted in public, however, any
executive issuance tending to unduly limit disclosures of information in such investigations necessarily
deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a
matter of public concern. The citizens are thereby denied access to information which they can use in
formulating their own opinions on the matter before Congress
| Page 5 of 6
Publication requirement

26. While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is
exempt from the need for publication. Based on tanada v Tuvera, the requirement of publication of laws
applies even to those that do not directly apply to people in general.

| Page 6 of 6
Saguisag vs. Executive Secretary Ochoa (2015)

Summary Cases:

● Saguisag vs. Executive Secretary

Subject: Power of judicial review; Requisites for the exercise of the power of judicial review; An actual
case or controversy is present; Locus standi; Petitions cannot qualify as citizens', taxpayers', or
legislators' suits; Petition nonetheless raise issues involving matters of transcendental importance; 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; Constitution prohibits the entry of foreign
military bases, troops or facilities, except by way of a treaty concurred in by the Senate; Constitutional
restriction under Sec 25, Art XVIII pertains to the entry of the bases, troops, or facilities, and not to the
activities to be done after entry is authorized; Treaties vs. Executive Agreement; Constitutional
restrictions on the power of the President to conclude international agreements; Power of the President
to enter into binding executive agreements without Senate concurrence; President had the choice to
enter into EDCA by way of an executive agreement or a treaty; Executive agreements may cover the
matter of foreign military forces if it merely involves detail adjustments; EDCA as a valid executive
agreement; EDCA is consistent with the content, purpose, and framework of the MDT and the VFA;
Admission of U.S. military and civilian personnel into Philippine territory is already allowed under the
VFA; EDCA does not guaratee admission of U.S. contractors into Philippine territory; Authorized
activities of U.S. military and civilian personnel within Philippine territory are in furtherance of the MDT
and the VFA; EDCA does not authorize permanent presence of US forces and bases; Authorized
activities performed by US. contractors within Philippine territory are subject to Philippines laws and must
be consistent with the MDT and the VFA; EDCA is not a disguised version of the Military Bases
Agreement (MBA); Agreed Locations under EDCA do not fall under the concept of "foreign military bases
and facilities" which requires Senate concurrence under Section 25, Art XVIII, 1987 Constitution; First
standard: independence from foreign control; Second standard: Philippine sovereignty and applicable
law; Third standard: must respect national security and territorial integrity; Public franchise not required
for telecommunication system intended solely for the use of the U.S.; Prohibition on introduction of
nuclear weapons into Philippine territory is respected; Assumption of tax liability by the Philippine
government does not create a tax exemption

Facts:

The petitions allege that the Executive Department committed grave abuse of discretion in entering into
the Enhanced Defense Cooperation Agreement (EDCA) with the United States of America (U.S.) in the
form of an executive agreement, instead of a treaty concurred in by the Senate.

The EDCA authorizes the U.S. military forces to have access to and conduct activities within certain
"Agreed Locations" in the country. It was not transmitted to the Senate on the executive's understanding
that to do so was no longer necessary. Accordingly, in June 2014, the Department of 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. President Benigno S.
Aquino III ratified EDCA on June 6, 2014. The Philippine and the U.S. governments had yet to agree
formally on the specific sites of the Agreed Locations mentioned in the agreement.

The issues presented before the court are:

(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
| Page 1 of 14
 (c) Whether the provisions under EDCA are consistent with the Constitution, as well as with
existing laws and treaties
Held:

I. Procedural Issues

Power of judicial review

1. Distinguished from the general notion of judicial power, the power of judicial review specially refers
to both the authority and the duty of this Court to determine whether a branch or an instrumentality of
government has acted beyond the scope of the latter's constitutional powers. As articulated in Section 1,
Article VIII of the Constitution, the power of judicial review involves the power to resolve cases in which
the questions concern the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation. In 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.

2. Under the 1987 Constitution, the scope of the power of judicial review has been extended to the
determination of whether in matters traditionally considered to be within the sphere of appreciation of
another branch of government, an exercise of discretion has been attended with grave abuse. The
expansion of this power has made the political question 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.

3. The "pillars" of the limitations on the power of judicial review are:

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

(see Demetria v. Alba and Francisco v. House of Representatives citing the concurring opinion of U.S.
Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley Authority)

Requisites for the exercise of the power of judicial review

4. The power of judicial review may only be exercised 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.
An actual case or controversy is present

5. The focus of this requirement is the ripeness for adjudication of the matter at hand, as opposed to its
being merely conjectural or anticipatory. The case must involve a definite and concrete issue involving
real parties with conflicting legal rights and legal claims admitting of specific relief through a decree
conclusive in nature. It should not equate with a mere request for an opinion or advice on what the law
| Page 2 of 14
would be upon an abstract, hypothetical, or contingent state of facts.

6. The OSG 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.

7. It must be emphasized that the Senate has already expressed its position through SR 105. Through
the Resolution, the Senate has taken a position contrary to that of the OSG. As the 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.

8. The matter before us involves an actual case or controversy that is already ripe for adjudication. The
Executive Department has already sent an official confirmation to the U.S. Embassy that "all internal
requirements of the Philippines x x x have already been complied with." By this exchange of diplomatic
notes, the Executive Department effectively performed the 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.

Locus standi

9. The question of locus standi or legal standing focuses on the determination of whether those assailing
the governmental act have the right of appearance to bring the matter to the court for adjudication. They
must show that they have a personal and substantial interest in the case, such 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.

10. Here, 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. 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.

Petitions cannot qualify as citizens', taxpayers', or legislators' suits

11. 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.

(a) Petition cannot qualify as Citizen's suits

12. 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. 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, petitioners 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.

| Page 3 of 14
(b) Petition cannot qualify as Taxpayer's suits

13. 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. Applying that principle to this case, petitioners must
establish that EDCA involves the exercise by Congress of its taxing or spending powers.

14. The petitions cannot qualify as taxpayers' suits. A taxpayers' suit contemplates a situation in which
there is already an appropriation or a disbursement of public funds. A reading of Article X(l) of EDCA
would show that there has been neither an appropriation nor an authorization of disbursement of funds.
Specifically, EDCA provides that “All obligations under this Agreement are subject to the availability of
appropriated funds authorized for these purposes” Hence, 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.

(c) Petition cannot qualify as Legislator's suits

15. In a legislators' suit, those Members of Congress who are challenging the official act have standing
only to the extent that the alleged violation impinges on their right to participate in the exercise of the
powers of the institution of which they are members. Legislators are allowed to sue to question the
validity of any official action, which they claim infringes their prerogatives as legislators. As legislators,
they must clearly show that there was a direct injury to their persons or the institution to which they
belong.

16. 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. The injured party would be the Senate as
an institution or any of its incumbent members, as it is the Senate's constitutional function that is
allegedly being violated. Petitioners, not being members of the Senate, do not have any legal standing to
file the suits concerning the lack of Senate concurrence in EDCA (see Pimentel v. Office of the Executive
Secretary)
Petition nonetheless raise issues involving matters of transcendental importance

17. In a number of cases, the Court has taken a liberal stance towards the requirement of legal standing,
especially when paramount interest is involved. When those who challenge the official act are able to
craft an issue of transcendental significance to the people, the Court may exercise its sound discretion
and take cognizance of the suit. It may do so in spite of the inability of the petitioners to show that they
have been personally injured by the operation of a law or any other government act.

18. Petitioners have presented serious constitutional issues that provide ample justification for the Court
to set aside the rule on standing. The transcendental importance of the issues presented here is rooted
in the Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a much stricter
mechanism required before foreign military troops, facilities, or bases may be allowed in the country. The
DFA has already confirmed to the U.S. Embassy that "all internal requirements of the Philippines x x x
have already been complied with." It behooves the Court in this instance to determine whether there was
grave abuse of discretion on the part of the Executive Department.

II. Substantive Issues

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
| Page 4 of 14
19. Throughout the different versions of the Philippine Constitution, the supreme executive power has
been specifically vested in the President of the Philippines (formerly, Governor-General). 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.

20. The duty to faithfully execute the laws of the land is inherent in executive power and is intimately
related to the other executive functions. More important, this mandate is self-executory by virtue of its
being inherently executive in nature. 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."

21. 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. (see Vinuya v. Romulo)

Constitution prohibits the entry of foreign military bases, troops or facilities, except by way of a
treaty concurred in by the Senate

22. 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.

23. The initial limitation is found in Art VII, 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."

24. The specific limitation is given by Art XVIII, Section 25 under the Transitory Provisions, 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.

25. 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.
Constitutional restriction under Sec 25, Art XVIII pertains to the ENTRY of the bases, troops, or
facilities, and not to the activities to be done AFTER entry is authorized

26. 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. Thus, 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.

| Page 5 of 14
27. 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.

28. The Visiting Forces Agreement (VFA) has already allowed the entry of troops in the Philippines. The
VFA provides that visiting US forces may sojourn in Philippine territory for purposes other than military,
i.e., joint training exercises like the Balikatan (see Lim v. Executive Secretary)

Treaties vs. Executive Agreement

29. 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. (see Commissioner of Customs v. Eastern Sea Trading)

30. Executive agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of
executive agreements under serious question for the main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of
these rules. In turn, executive agreements cannot create new international obligations that are not
expressly allowed or reasonably implied in the law they purport to implement.

31. Treaties are, by their very nature, considered superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate unlike executive agreements, which are solely
executive actions. Because of legislative participation through the Senate, a treaty is regarded as being
on the same level as a statute. If there is an irreconcilable conflict, a later law or treaty takes precedence
over one that is prior. An executive agreement is treated differently. Executive agreements that are
inconsistent with either a law or a treaty are considered ineffective. Both types of international agreement
are nevertheless subject to the supremacy of the Constitution.

Constitutional restrictions on the power of the President to conclude international agreements

32. 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

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

c. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of
all the Members of Congress

d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be
previously concurred in by the Monetary Board

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.

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 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.
Power of the President to enter into binding executive agreements without Senate concurrence

33. In Commissioner of Customs v. Eastern Sea Trading , executive agreements are defined as
"international agreements embodying adjustments of detail carrying out well-established national policies
and traditions and those involving arrangements of a more or less temporary nature.” In Bayan Muna v.
Romulo, this Court further clarified that executive agreements can cover a wide array of subjects that
have various scopes and purposes.

34. Executive agreements may dispense with the requirement of Senate concurrence because they
merely involve arrangements on the implementation of existing policies, rules, laws, or agreements.
They are concluded (1) to adjust the details of a treaty; (2) pursuant to or upon confirmation by an act of
the Legislature; or (3) in the exercise of the President's independent powers under the Constitution. The
raison d'etre of executive agreements hinges on prior constitutional or legislative authorizations.

35. The term "international agreements" as contemplated in Section 21, Article VII, does not include
executive agreements.

President had the choice to enter into EDCA by way of an executive agreement or a treaty

36. 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 an or executive agreement, as
the parties in either international agreement each labor under the pacta sunt servanda principle. (see
Bayan Muna v. Romulo)

37. 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.

Executive agreements may cover the matter of foreign military forces if it merely involves detail
adjustments

38. 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.

39. 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.

40. 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.
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41. The executive agreement must be consistent with the Constitution, as well as with existing laws and
treaties.
EDCA as a valid executive agreement

42. In light of the President's choice to enter into EDCA in the form of an executive agreement,
respondents (Executive branch) carry the burden of proving that it is a mere implementation of existing
laws and treaties concurred in by the Senate. EDCA must be carefully dissected to ascertain if it remains
within the legal parameters of a valid executive agreement.

(a) EDCA is consistent with the content, purpose, and framework of the MDT and the VFA

43. An executive agreement may not be used to amend a treaty. Accordingly, the EDCA shall be
scrutinized by studying "the framework of the treaty antecedents to which the Philippines bound itself"
i.e., the Military Defense Treaty (MDT) and the Visiting Forces Agreement (VFA).

44. It is pointed in the dissenting opinion 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. Jurisprudence however has established that combat-related activities, as
opposed to actual combat, were allowed under the MDT and VFA. 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.

45. 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 operatjons
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.

46. It was also averred that EDCA supposedly introduces a new concept not contemplated in the VFA or
the MDT, i.e, Agreed Locations, Contractors, Pre-positioning, and Operational Control. It must 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.

(b) Admission of U.S. military and civilian personnel into Philippine territory is already allowed
under the VFA

47. 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 VFA does not limit their temporary presence to specific
locations.

48. 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.

(c) EDCA does not guaratee admission of U.S. contractors into Philippine territory

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49. EDCA recognizes 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.

50. 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 they before are allowed to enter the country.

51. 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.
52. Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S.
contractors into the country. We emphasize that the admission of aliens into Philippine territory is "a
matter of pure permission and simple tolerance which creates no obligation on the part of the
government to permit them to stay." Unlike U.S. personnel who are accorded entry accommodations,
U.S. contractors are subject to Philippine immigration laws. The latter must comply with our visa and
passport regulations and prove that they are not subject to exclusion under any provision of Philippine
immigration laws. 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.

53. The President may exercise the plenary power to expel or deport U.S. contractors as may be
necessitated by national security, public safety, public health, public morals, and national interest. 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. 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.

(d) Authorized activities of U.S. military and civilian personnel within Philippine territory are in
furtherance of the MDT and the VFA

55. Manifest in the provisions of the MDT and VFA are the abundance of references to the creation of
further "implementing arrangements" including the identification of "activities to be approved by the
Philippine Government."

56. The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by
the Philippine Government" under Article I of the VFA was intended to be ambiguous in order to afford
the parties flexibility to adjust the details of the purpose of the visit of U.S. personnel. In this manner,
visiting US forces may sojourn in Philippine territory for purposes other than military.

57. The "activities" referred to in the VFA treaty are meant to be specified and identified in further
agreements. EDCA is one such agreement. EDCA seeks to be an instrument that enumerates the
Philippine-approved activities of U.S. personnel referred to in the VFA.

58. 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.
| Page 9 of 14
(e) EDCA does not authorize permanent presence of US forces and bases

59. Petitioners assert 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. 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.
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.

60. Moreover, EDCA merely grants 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.

61. 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.
(f) Authorized activities performed by US. contractors within Philippine territory are subject to
Philippines laws and must be consistent with the MDT and the VFA

62. Petitioners also raise concerns about the U.S. government's purported practice of hiring private
security contractors in other countries. They claim that these contractors 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.

63. 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. Hence,
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.

64. The concerns raised by petitioners do not give the Court enough justification to strike down EDCA.
The courts cannot take judicial notice of claims aired in news reports for the simple reason that facts
must be established in accordance with the rules of evidence. Courts also cannot move one step ahead
and speculate that the alleged illegal activities of these contractors in other countries would likewise take
place in the Philippines. 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.

65. To emphasize, 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. Our penal laws, labor laws, and immigrations laws apply to them and therefore limit
their activities here.

(g) EDCA is not a disguised version of the Military Bases Agreement (MBA)

66. Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases through
the "euphemistically" termed "Agreed Locations. " Alluding to the definition of this term in Article 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. Hence, EDCA is but a
disguised version of the 1947 Military Bases Agreement (MBA).
| Page 10 of 14
67. 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.

68. Under the MBA, the U.S. retains ownership if it paid for the facility. Under EDCA, an immovable is
owned by the Philippines, even if built completely on the back of U.S. funding. This is consistent with the
constitutional prohibition on foreign land ownershp.

69. Under the MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory occupied by
American bases. In contrast, under EDCA, the U.S. does not enjoy any such right over any part of the
Philippines in which its forces or equipment may be found.

70. Under the MBA, the U.S. and the Philippines were visibly not on equal footing when it came to
deciding whether to expand or to increase the number of bases, as the Philippines may be compelled to
negotiate with the U.S. the moment the latter requested an expansion of the existing bases or to acquire
additional bases. In EDCA, U.S. access is purely at the invitation of the Philippines.

71. Under the MBA, the U.S. had complete control over its military bases, and the U.S. could effectively
prevent Philippine authorities from entering those bases. In EDCA, the Philippines is guaranteed access
over the entire area of the Agreed Locations.

72. Under the MBA, the U.S. was given the authority to use Philippine territory for additional staging
areas, bombing and gunnery ranges. No such right is given under EDCA.

73. Under the MBA, the U.S. was given the right, power, and authority to control and prohibit the
movement and operation of all types of vehicles within the vicinity of the bases. The U.S. does not have
any right, power, or authority to do so under EDCA.

74. Under the MBA, the U.S. had the right to improve and deepen the harbors, channels, entrances, and
anchorages; and to construct or maintain necessary roads and bridges that would afford it access to its
military bases. Under EDCA, the U.S. is merely given temporary access to land and facilities (including
roads, ports, and airfields).

75. Under the MBA, the U.S. was granted the automatic right to use any and all public utilities, services
and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals, lakes, rivers,
and streams in the Philippines in the same manner that Philippine military forces enjoyed that right. No
such arrangement appears in EDCA. In fact, it merely extends to U.S. forces temporary access to public
land and facilities when requested.

76. Under EDCA, the U.S. no longer has the right, power, and authority to construct, install, maintain,
and employ any type of facility, weapon, substance, device, vessel or vehicle, or system unlike in the
MBA. EDCA merely grants the U.S., through bilateral security mechanisms, the authority to undertake
construction, alteration, or improvements on the Philippine-owned Agreed Locations.

77. EDCA does not allow the U.S. to acquire, by condemnation or expropriation proceedings, real
property belonging to any private person. The old MBA gave this right to the U.S.

78. 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.
| Page 11 of 14
79. 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 MBA.

80. 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.
Agreed Locations under EDCA do not fall under the concept of "foreign military bases and
facilities" which requires Senate concurrence under Section 25, Art XVIII, 1987 Constitution

81. Section 25, Article XVIII of the 1987 Constitution 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.
Notably, Section 25 does not define what is meant by a "foreign military facility or base." At the time of its
crafting of the Constitution, the 1986 Constitutional Commission had a clear idea of what exactly it was
restricting. Its point of reference was clearly areas covered by the 1947 MBA as amended. In 1991, the
Philippine Senate rejected the successor treaty of the 1947 MBA that would have allowed the
continuation of U.S. bases in the Philippines.

82. The latest agreement is EDCA, which proposes a novel concept termed "Agreed Locations." 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.

(a) First standard: independence from foreign control

83. The heart of the constitutional restriction on foreign military facilities and bases is the assertion of
independence from the U.S. and other foreign powers, as independence is exhibited by the degree of
foreign control exerted over these areas. The essence of that independence is self-governance and
self-control.

84. 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. EDCA explicitly provides that ownership of the
Agreed Locations remains with the Philippine govemment. What U.S. personnel have a right to, pending
mutual agreement, is access to and use of these locations. EDCA, in respect of its provisions on Agreed
Locations, is essentially a contract of use and access. The activities carried out within these locations
are subject to agreement as authorized by the Philippine govemment.

85. Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational control
and defense." 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.

86. Petitioners mistakenly equate "operational control" with "effective command and control." Operational
control is 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.

| Page 12 of 14
87. EDCA indeed contains a specific provision that gives to the U.S. operational control within the
Agreed Locations during construction activities. 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.

88. Limited control does not violate the Constitution. The fear of the commissioners was total control, to
the point that the foreign military forces might dictate the terms of their acts within the Philippines. More
important, limited control does not mean an abdication or derogation of Philippine sovereignty and legal
jurisdiction over the Agreed Locations. It is more akin to the extension of diplomatic courtesies and rights
to diplomatic agents, which is a waiver of control on a limited scale and subject to the terms of the treaty.
(b) Second standard: Philippine sovereignty and applicable law

89. From the text of EDCA itself, Agreed Locations are territories of the Philippines that the U.S. forces
are allowed to access and use. By withholding ownership of these areas and retaining unrestricted
access to them, the government asserts sovereignty over its territory. That sovereignty exists so long as
the Filipino people exist.

90. The Philippines retains primary responsibility for security with respect to the Agreed Locations.
Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction has been
transferred to the U.S.

(c) Third standard: Must respect national security and territorial integrity

91. 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).

92. 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

93. 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.

Public franchise not required for telecommunication system intended solely for the use of the
U.S.

94. In reference to the issue on telecommunications, suffice it to say that the initial impression of the
facility adverted to does appear to be one of those that require a public franchise by way of
congressional action under Section 11, Article XII of the Constitution. As respondents submit, however,
the system referred to in the agreement does not provide telecommunications services to the public for
compensation. It is clear from Article VIl(2) of EDCA that the telecommunication 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.

Prohibition on introduction of nuclear weapons into Philippine territory is respected

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95. The charge that EDCA allows nuclear weapons within Philippine territory is entirely speculative. It is
noteworthy that the agreement in fact specifies that the prepositioned materiel shall not include nuclear
weapons. Petitioners argue that only prepositioned nuclear weapons are prohibited by EDCA, and that,
therefore, the U.S. would insidiously bring nuclear weapons to Philippine territory. The general
prohibition on nuclear weapons, whether prepositioned or not, is already expressed in the 1987
Constitution. It would be unnecessary or superfluous to include all prohibitions already in the Constitution
or in the law through a document like EDCA.

Assumption of tax liability by the Philippine government does not create a tax exemption

96. petitioners allege that EDCA creates a tax exemption, which under the law must originate from
Congress. EDCA simply states that the taxes on the use of water, electricity, and public utilities are for
the account of the Philippine Government. This provision creates a situation in which a contracting party
assumes the tax liability of the other. In National Power Corporation v. Province of Quezon, the court
concluded that an enforceable assumption of tax liability requires the party assuming the liability to have
actual interest in the property taxed. This rule applies to EDCA, since the Philippine Government stands
to benefit not only from the structures to be built thereon or improved, but also from the joint training with
U.S. forces, disaster preparation, and the preferential use of Philippine suppliers. Hence, the provision
on the assumption of tax liability does not constitute a tax exemption as petitioners have posited.

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