EN BANC

January 12, 2016

G.R. No. 212426

RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO, JR., SR.
MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L.
ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR.
ROLAND SIMBULAN, AND TEDDY CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE
SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT
DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO
ABAD, AND ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T.
BAUTISTA, Respondents.

x-----------------------x

G.R. No. 212444

BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY GENERAL

RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES NERI J.
COLMENARES AND CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES
LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS PARTY-LIST REPRESENTATIVE
ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE FERNANDO HICAP,
KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG
MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA,
BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE,
ROGELIO M. SOLUTA, AND CLEMENTE G. BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL
EMMANUEL T. BAUTISTA, DEFENSE UNDERSECRETARY PIO LORENZO BATINO,
AMBASSADOR LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA,
DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, AND DND
ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE
PHILIPPINES ON EDCA, Respondents.

x-----------------------x

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG,

CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE), REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND GAITE,
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO, REPRESENTED BY ITS
NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU,
VIRGINIA FLORES, AND ARMANDO TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.

DECISION

SERENO, J.:

The petitions1 before this Court question the constitutionality of the Enhanced Defense Cooperation
Agreement (EDCA) between the Republic of the Philippines and the United States of America (U.S.).
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of
jurisdiction when they entered into EDCA with the U.S.,2 claiming that the instrument violated multiple
constitutional provisions.3 In reply, respondents argue that petitioners lack standing to bring the suit. To
support the legality of their actions, respondents invoke the 1987 Constitution, treaties, and judicial
precedents.4
1
Page
 A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of the
constitutional powers and roles of the President and the Senate in respect of the above issues. A more
detailed discussion of these powers and roles will be made in the latter portions.

I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT: DEFENSE,

FOREIGN RELATIONS, AND EDCA

A. The Prime Duty of the State and the Consolidation of Executive Power in the President

Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig

ang aking mga tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng
Pilipinas, pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas nito,
magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan
nawa aka ng Diyos.

- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas5

The 1987 Constitution has "vested the executive power in the President of the Republic of the
Philippines."6 While the vastness of the executive power that has been consolidated in the person of
the President cannot be expressed fully in one provision, the Constitution has stated the prime duty of
the government, of which the President is the head:

The prime duty of the Government is to serve and protect the people. The Government may call
upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil service.7 (Emphases supplied)

B. The duty to protect the territory and the citizens of the Philippines, the power to call upon the
people to defend the State, and the President as Commander-in-Chief

The duty to protect the State and its people must be carried out earnestly and effectively throughout the
whole territory of the Philippines in accordance with the constitutional provision on national territory.
Hence, the President of the Philippines, as the sole repository of executive power, is the guardian of the
Philippine archipelago, including all the islands and waters embraced therein and all other territories
over which it has sovereignty or jurisdiction. These territories consist of its terrestrial, fluvial, and aerial
domains; including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine
areas; and the waters around, between, and connecting the islands of the archipelago, regardless of
their breadth and dimensions.8

To carry out this important duty, the President is equipped with authority over the Armed Forces of the
Philippines (AFP),9 which is the protector of the people and the state. The AFP's role is to secure the
sovereignty of the State and the integrity of the national territory. 10 In addition, the Executive is
constitutionally empowered to maintain peace and order; protect life, liberty, and property; and promote
the general welfare.11

In recognition of these powers, Congress has specified that the President must oversee, ensure, and
reinforce our defensive capabilities against external and internal threats12 and, in the same vein, ensure
that the country is adequately prepared for all national and local emergencies arising from natural and
man-made disasters.13

To be sure, this power is limited by the Constitution itself. To illustrate, the President may call out the
AFP to prevent or suppress instances of lawless violence, invasion or rebellion,14 but not suspend the
privilege of the writ of habeas corpus for a period exceeding 60 days, or place the Philippines or any
part thereof under martial law exceeding that same span. In the exercise of these powers, the President
is also duty-bound to submit a report to Congress, in person or in writing, within 48 hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus; and
Congress may in turn revoke the proclamation or suspension. The same provision provides for the
Supreme Court's review of the factual basis for the proclamation or suspension, as well as the
promulgation of the decision within 30 days from filing.

C. The power and duty to conduct foreign relations

The President also carries the mandate of being the sole organ in the conduct of foreign
relations.15 Since every state has the capacity to interact with and engage in relations with other
2

sovereign states,16 it is but logical that every state must vest in an agent the authority to represent its
Page

interests to those other sovereign states.

 The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and can decide with
decisiveness. x x x It is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular officials regularly brief
him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay,
validity of his actions are adjudged under less stringent standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally undesirable consequences.17

The role of the President in foreign affairs is qualified by the Constitution in that the Chief Executive
must give paramount importance to the sovereignty of the nation, the integrity of its territory, its interest,
and the right of the sovereign Filipino people to self-determination.18 In specific provisions, the
President's power is also limited, or at least shared, as in Section 2 of Article II on the conduct of war;
Sections 20 and 21 of Article VII on foreign loans, treaties, and international agreements; Sections 4(2)
and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25 of Article XVIII on
treaties and international agreements entered into prior to the Constitution and on the presence of
foreign military troops, bases, or facilities.

D. The relationship between the two major presidential functions and the role of the Senate

Clearly, the power to defend the State and to act as its representative in the international sphere
inheres in the person of the President. This power, however, does not crystallize into absolute
discretion to craft whatever instrument the Chief Executive so desires. As previously mentioned, the
Senate has a role in ensuring that treaties or international agreements the President enters into, as
contemplated in Section 21 of Article VII of the Constitution, obtain the approval of two-thirds of its
members.

Previously, treaties under the 1973 Constitution required ratification by a majority of the Batasang
Pambansa,19 except in instances wherein the President "may enter into international treaties or
agreements as the national welfare and interest may require."20 This left a large margin of discretion
that the President could use to bypass the Legislature altogether. This was a departure from the 1935
Constitution, which explicitly gave the President the power to enter into treaties only with the
concurrence of two-thirds of all the Members of the Senate.21 The 1987 Constitution returned the
Senate's power22 and, with it, the legislative's traditional role in foreign affairs.23

The responsibility of the President when it comes to treaties and international agreements under the
present Constitution is therefore shared with the Senate. This shared role, petitioners claim, is
bypassed by EDCA.

II. HISTORICAL ANTECEDENTS OF EDCA

A. U.S. takeover of Spanish colonization and its military bases, and the transition to Philippine
independence

The presence of the U.S. military forces in the country can be traced to their pivotal victory in the 1898
Battle of Manila Bay during the Spanish-American War.24 Spain relinquished its sovereignty over the
Philippine Islands in favor of the U.S. upon its formal surrender a few months later.25 By 1899, the
Americans had consolidated a military administration in the archipelago.26

When it became clear that the American forces intended to impose colonial control over the Philippine
Islands, General Emilio Aguinaldo immediately led the Filipinos into an all-out war against the
U.S.27 The Filipinos were ultimately defeated in the Philippine-American War, which lasted until 1902
and led to the downfall of the first Philippine Republic.28 The Americans henceforth began to strengthen
their foothold in the country.29 They took over and expanded the former Spanish Naval Base in Subic
Bay, Zambales, and put up a cavalry post called Fort Stotsenberg in Pampanga, now known as Clark
Air Base.30

When talks of the eventual independence of the Philippine Islands gained ground, the U.S. manifested
the desire to maintain military bases and armed forces in the country.31 The U.S. Congress later
enacted the Hare-Hawes-Cutting Act of 1933, which required that the proposed constitution of an
independent Philippines recognize the right of the U.S. to maintain the latter's armed forces and military
3

bases.32 The Philippine Legislature rejected that law, as it also gave the U.S. the power to unilaterally
Page
 designate any part of Philippine territory as a permanent military or naval base of the U.S. within two
years from complete independence.33

The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or the
Philippine Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act, the new law
provided for the surrender to the Commonwealth Government of "all military and other reservations" of
the U.S. government in the Philippines, except "naval reservations and refueling
stations."34 Furthermore, the law authorized the U.S. President to enter into negotiations for the
adjustment and settlement of all questions relating to naval reservations and fueling stations within two
years after the Philippines would have gained independence.35 Under the Tydings-McDuffie Act, the
U.S. President would proclaim the American withdrawal and surrender of sovereignty over the islands
10 years after the inauguration of the new government in the Philippines.36 This law eventually led to
the promulgation of the 1935 Philippine Constitution.

The original plan to surrender the military bases changed.37 At the height of the Second World War, the
Philippine and the U.S. Legislatures each passed resolutions authorizing their respective Presidents to
negotiate the matter of retaining military bases in the country after the planned withdrawal of the
U.S.38 Subsequently, in 1946, the countries entered into the Treaty of General Relations, in which the
U.S. relinquished all control and sovereignty over the Philippine Islands, except the areas that would be
covered by the American military bases in the country.39 This treaty eventually led to the creation of the
post-colonial legal regime on which would hinge the continued presence of U.S. military forces until
1991: the Military Bases Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, and the
Mutual Defense Treaty (MDT) of 1951.40

B. Former legal regime on the presence of U.S. armed forces in the territory of an independent
Philippines (1946-1991)

Soon after the Philippines was granted independence, the two countries entered into their first military
arrangement pursuant to the Treaty of General Relations - the 1947 MBA.41 The Senate concurred on
the premise of "mutuality of security interest,"42 which provided for the presence and operation of 23
U.S. military bases in the Philippines for 99 years or until the year 2046.43 The treaty also obliged the
Philippines to negotiate with the U.S. to allow the latter to expand the existing bases or to acquire new
ones as military necessity might require.44

A number of significant amendments to the 1947 MBA were made.45 With respect to its duration, the
parties entered into the Ramos-Rusk Agreement of 1966, which reduced the term of the treaty from 99
years to a total of 44 years or until 1991.46 Concerning the number of U.S. military bases in the country,
the Bohlen-Serrano Memorandum of Agreement provided for the return to the Philippines of 17 U.S.
military bases covering a total area of 117,075 hectares.47 Twelve years later, the U.S. returned
Sangley Point in Cavite City through an exchange of notes.48 Then, through the Romulo-Murphy
Exchange of Notes of 1979, the parties agreed to the recognition of Philippine sovereignty over Clark
and Subic Bases and the reduction of the areas that could be used by the U.S. military.49 The
agreement also provided for the mandatory review of the treaty every five years. 50 In 1983, the parties
revised the 1947 MBA through the Romualdez-Armacost Agreement.51 The revision pertained to the
operational use of the military bases by the U.S. government within the context of Philippine
sovereignty,52 including the need for prior consultation with the Philippine government on the former' s
use of the bases for military combat operations or the establishment of long-range missiles.53

Pursuant to the legislative authorization granted under Republic Act No. 9,54 the President also entered
into the 1947 Military Assistance Agreement55 with the U.S. This executive agreement established the
conditions under which U.S. military assistance would be granted to the Philippines,56 particularly the
provision of military arms, ammunitions, supplies, equipment, vessels, services, and training for the
latter's defense forces.57 An exchange of notes in 1953 made it clear that the agreement would remain
in force until terminated by any of the parties.58

To further strengthen their defense and security relationship,59 the Philippines and the U.S. next
entered into the MDT in 1951. Concurred in by both the Philippine60 and the U.S.61 Senates, the treaty
has two main features: first, it allowed for mutual assistance in maintaining and developing their
individual and collective capacities to resist an armed attack;62 and second, it provided for their mutual
self-defense in the event of an armed attack against the territory of either party.63 The treaty was
premised on their recognition that an armed attack on either of them would equally be a threat to the
security of the other.64

C. Current legal regime on the presence of U.S. armed forces in the country
4
Page
 In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S. negotiated
for a possible renewal of their defense and security relationship.65 Termed as the Treaty of Friendship,
Cooperation and Security, the countries sought to recast their military ties by providing a new
framework for their defense cooperation and the use of Philippine installations.66 One of the proposed
provisions included an arrangement in which U.S. forces would be granted the use of certain
installations within the Philippine naval base in Subic.67 On 16 September 1991, the Senate rejected
the proposed treaty.68

The consequent expiration of the 1947 MBA and the resulting paucity of any formal agreement dealing
with the treatment of U.S. personnel in the Philippines led to the suspension in 1995 of large-scale joint
military exercises.69 In the meantime, the respective governments of the two countries agreed70 to hold
joint exercises at a substantially reduced level.71 The military arrangements between them were revived
in 1999 when they concluded the first Visiting Forces Agreement (VFA).72

As a "reaffirm[ation] [of the] obligations under the MDT,"73 the VFA has laid down the regulatory
mechanism for the treatment of U.S. military and civilian personnel visiting the country.74 It contains
provisions on the entry and departure of U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of certain claims; the importation and
exportation of equipment, materials, supplies, and other pieces of property owned by the U.S.
government; and the movement of U.S. military vehicles, vessels, and aircraft into and within the
country.75 The Philippines and the U.S. also entered into a second counterpart agreement (VFA II),
which in turn regulated the treatment of Philippine military and civilian personnel visiting the U.S.76 The
Philippine Senate concurred in the first VFA on 27 May 1999.77

Beginning in January 2002, U.S. military and civilian personnel started arriving in Mindanao to take part
in joint military exercises with their Filipino counterparts.78 Called Balikatan, these exercises involved
trainings aimed at simulating joint military maneuvers pursuant to the MDT.79

In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement to
"further the interoperability, readiness, and effectiveness of their respective military forces" 80 in
accordance with the MDT, the Military Assistance Agreement of 1953, and the VFA.81 The new
agreement outlined the basic terms, conditions, and procedures for facilitating the reciprocal provision
of logistics support, supplies, and services between the military forces of the two countries. 82 The
phrase "logistics support and services" includes billeting, operations support, construction and use of
temporary structures, and storage services during an approved activity under the existing military
arrangements.83 Already extended twice, the agreement will last until 2017.84

D. The Enhanced Defense Cooperation Agreement

EDCA authorizes the U.S. military forces to have access to and conduct activities within certain
"Agreed Locations" in the country. It was not transmitted to the Senate on the executive's
understanding that to do so was no longer necessary.85 Accordingly, in June 2014, the Department of
Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes confirming the completion
of all necessary internal requirements for the agreement to enter into force in the two countries. 86

According to the Philippine government, the conclusion of EDCA was the result of intensive and
comprehensive negotiations in the course of almost two years.87 After eight rounds of negotiations, the
Secretary of National Defense and the U.S. Ambassador to the Philippines signed the agreement on 28
April 2014.88 President Benigno S. Aquino III ratified EDCA on 6 June 2014.89 The OSG clarified during
the oral arguments90 that the Philippine and the U.S. governments had yet to agree formally on the
specific sites of the Agreed Locations mentioned in the agreement.

Two petitions for certiorari were thereafter filed before us assailing the constitutionality of EDCA. They
primarily argue that it should have been in the form of a treaty concurred in by the Senate, not an
executive agreement.

On 10 November 2015, months after the oral arguments were concluded and the parties ordered to file
their respective memoranda, the Senators adopted Senate Resolution No. (SR) 105.91 The resolution
expresses the "strong sense"92 of the Senators that for EDCA to become valid and effective, it must first
be transmitted to the Senate for deliberation and concurrence.

III. ISSUES

Petitioners mainly seek a declaration that the Executive Department committed grave abuse of
5
Page

discretion in entering into EDCA in the form of an executive agreement. For this reason, we cull the
issues before us:
 A. Whether the essential requisites for judicial review are present

B. Whether the President may enter into an executive agreement on foreign military
bases, troops, or facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as
with existing laws and treaties

IV. DISCUSSION

A. Whether the essential requisites for judicial review have been satisfied

Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for violating the
Constitution. They stress that our fundamental law is explicit in prohibiting the presence of foreign
military forces in the country, except under a treaty concurred in by the Senate. Before this Court may
begin to analyze the constitutionality or validity of an official act of a coequal branch of government,
however, petitioners must show that they have satisfied all the essential requisites for judicial review.93

Distinguished from the general notion of judicial power, the power of judicial review specially refers to
both the authority and the duty of this Court to determine whether a branch or an instrumentality of
government has acted beyond the scope of the latter's constitutional powers. 94 As articulated in Section
1, Article VIII of the Constitution, the power of judicial review involves the power to resolve cases in
which the questions concern the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation.95 In Angara v. Electoral Commission, this Court exhaustively discussed this "moderating
power" as part of the system of checks and balances under the Constitution. In our fundamental law,
the role of the Court is to determine whether a branch of government has adhered to the specific
restrictions and limitations of the latter's power:96

The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and independent of each other. The
Constitution has provided for an elaborate system of checks and balances to secure coordination
in the workings of the various departments of the government. x x x. And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its
power to determine the law, and hence to declare executive and legislative acts void if violative
of the Constitution.

xxxx

As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole, under a
system of checks and balances, and subject to specific limitations and restrictions provided in
the said instrument. The Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism by
which to direct the course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment,
and the principles of good government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any living constitution. x x x. In
our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article
VIII of [the 1935] Constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and
extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the
rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify or invalidate an
act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the Constitution and to establish
for the parties in an actual controversy the rights which that instrument secures and guarantees
6

to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is
Page

the power of judicial review under the Constitution. x x x x. (Emphases supplied)

 The power of judicial review has since been strengthened in the 1987 Constitution. The scope of that
power has been extended to the determination of whether in matters traditionally considered to be
within the sphere of appreciation of another branch of government, an exercise of discretion has been
attended with grave abuse.97 The expansion of this power has made the political question doctrine "no
longer the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review." 98

This moderating power, however, must be exercised carefully and only if it cannot be completely
avoided. We stress that our Constitution is so incisively designed that it identifies the spheres of
expertise within which the different branches of government shall function and the questions of policy
that they shall resolve.99 Since the power of judicial review involves the delicate exercise of examining
the validity or constitutionality of an act of a coequal branch of government, this Court must continually
exercise restraint to avoid the risk of supplanting the wisdom of the constitutionally appointed actor with
that of its own.100

Even as we are left with no recourse but to bare our power to check an act of a coequal branch of
government - in this case the executive - we must abide by the stringent requirements for the exercise
of that power under the Constitution. Demetria v. Alba101 and Francisco v. House of
Representatives102 cite the "pillars" of the limitations on the power of judicial review as enunciated in the
concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley
Authority.103 Francisco104 redressed these "pillars" under the following categories:

1. That there be absolute necessity of deciding a case

2. That rules of constitutional law shall be formulated only as required by the facts of the
case

3. That judgment may not be sustained on some other ground

4. That there be actual injury sustained by the party by reason of the operation of the statute

5. That the parties are not in estoppel

6. That the Court upholds the presumption of constitutionality

(Emphases supplied)

These are the specific safeguards laid down by the Court when it exercises its power of judicial
review.105 Guided by these pillars, it may invoke the power only when the following four stringent
requirements are satisfied: (a) there is an actual case or controversy; (b) petitioners possess locus
standi; (c) the question of constitutionality is raised at the earliest opportunity; and (d) the issue of
constitutionality is the lis mota of the case.106 Of these four, the first two conditions will be the focus of
our discussion.

1. Petitioners have shown the presence of an actual case or controversy.

The OSG maintains107 that there is no actual case or controversy that exists, since the Senators have
not been deprived of the opportunity to invoke the privileges of the institution they are representing. It
contends that the nonparticipation of the Senators in the present petitions only confirms that even they
believe that EDCA is a binding executive agreement that does not require their concurrence.

It must be emphasized that the Senate has already expressed its position through SR 105.108 Through
the Resolution, the Senate has taken a position contrary to that of the OSG. As the body tasked to
participate in foreign affairs by ratifying treaties, its belief that EDCA infringes upon its constitutional role
indicates that an actual controversy - albeit brought to the Court by non-Senators, exists.

Moreover, we cannot consider the sheer abstention of the Senators from the present proceedings as
basis for finding that there is no actual case or controversy before us. We point out that the focus of this
requirement is the ripeness for adjudication of the matter at hand, as opposed to its being merely
conjectural or anticipatory.109 The case must involve a definite and concrete issue involving real parties
with conflicting legal rights and legal claims admitting of specific relief through a decree conclusive in
nature.110 It should not equate with a mere request for an opinion or advice on what the law would be
upon an abstract, hypothetical, or contingent state of facts.111 As explained in Angara v. Electoral
7

Commission:112
Page
 [The] power of judicial review is limited to actual cases and controversies to be exercised after
full opportunity of argument by the parties, and limited further to the constitutional question raised
or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren
legal questions and to sterile conclusions of wisdom, justice or expediency of legislation. More
than that, courts accord the presumption of constitutionality to legislative enactments, not only because
the legislature is presumed to abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the wisdom and justice of the
people as expressed through their representatives in the executive and legislative departments
of the government. (Emphases supplied)

We find that the matter before us involves an actual case or controversy that is already ripe for
adjudication. The Executive Department has already sent an official confirmation to the U.S. Embassy
that "all internal requirements of the Philippines x x x have already been complied with." 113 By this
exchange of diplomatic notes, the Executive Department effectively performed the last act required
under Article XII(l) of EDCA before the agreement entered into force. Section 25, Article XVIII of the
Constitution, is clear that the presence of foreign military forces in the country shall only be allowed by
virtue of a treaty concurred in by the Senate. Hence, the performance of an official act by the Executive
Department that led to the entry into force of an executive agreement was sufficient to satisfy the actual
case or controversy requirement.

2. While petitioners Saguisag et. al., do not have legal standing, they nonetheless raise issues
involving matters of transcendental importance.

The question of locus standi or legal standing focuses on the determination of whether those assailing
the governmental act have the right of appearance to bring the matter to the court for
adjudication.114 They must show that they have a personal and substantial interest in the case, such
that they have sustained or are in immediate danger of sustaining, some direct injury as a consequence
of the enforcement of the challenged governmental act.115 Here, "interest" in the question involved must
be material - an interest that is in issue and will be affected by the official act - as distinguished from
being merely incidental or general.116 Clearly, it would be insufficient to show that the law or any
governmental act is invalid, and that petitioners stand to suffer in some indefinite way.117 They must
show that they have a particular interest in bringing the suit, and that they have been or are about to be
denied some right or privilege to which they are lawfully entitled, or that they are about to be subjected
to some burden or penalty by reason of the act complained of.118 The reason why those who challenge
the validity of a law or an international agreement are required to allege the existence of a personal
stake in the outcome of the controversy is "to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult constitutional
questions."119

The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate as a body
has the requisite standing, but considering that it has not formally filed a pleading to join the suit, as it
merely conveyed to the Supreme Court its sense that EDCA needs the Senate's concurrence to be
valid, petitioners continue to suffer from lack of standing.

In assailing the constitutionality of a governmental act, petitioners suing as citizens may dodge the
requirement of having to establish a direct and personal interest if they show that the act affects a
public right.120 In arguing that they have legal standing, they claim121 that the case they have filed is a
concerned citizen's suit. But aside from general statements that the petitions involve the protection of a
public right, and that their constitutional rights as citizens would be violated, they fail to make any
specific assertion of a particular public right that would be violated by the enforcement of EDCA. For
their failure to do so, the present petitions cannot be considered by the Court as citizens' suits
that would justify a disregard of the aforementioned requirements.

In claiming that they have legal standing as taxpayers, petitioners122 aver that the implementation of
EDCA would result in the unlawful use of public funds. They emphasize that Article X(1) refers to an
appropriation of funds; and that the agreement entails a waiver of the payment of taxes, fees, and
rentals. During the oral arguments, however, they admitted that the government had not yet
appropriated or actually disbursed public funds for the purpose of implementing the agreement.123 The
OSG, on the other hand, maintains that petitioners cannot sue as taxpayers.124 Respondent explains
that EDCA is neither meant to be a tax measure, nor is it directed at the disbursement of public funds.

A taxpayer's suit concerns a case in which the official act complained of directly involves the illegal
disbursement of public funds derived from taxation.125 Here, those challenging the act must specifically
show that they have sufficient interest in preventing the illegal expenditure of public money, and that
8

they will sustain a direct injury as a result of the enforcement of the assailed act. 126 Applying that
Page
 principle to this case, they must establish that EDCA involves the exercise by Congress of its taxing or
spending powers.127

We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize that a
taxpayers' suit contemplates a situation in which there is already an appropriation or a disbursement of
public funds.128 A reading of Article X(l) of EDCA would show that there has been neither an
appropriation nor an authorization of disbursement of funds. The cited provision reads:

All obligations under this Agreement are subject to the availability of appropriated funds authorized
for these purposes. (Emphases supplied)

This provision means that if the implementation of EDCA would require the disbursement of public
funds, the money must come from appropriated funds that are specifically authorized for this purpose.
Under the agreement, before there can even be a disbursement of public funds, there must first be a
legislative action. Until and unless the Legislature appropriates funds for EDCA, or unless
petitioners can pinpoint a specific item in the current budget that allows expenditure under the
agreement, we cannot at this time rule that there is in fact an appropriation or a disbursement of
funds that would justify the filing of a taxpayers' suit.

Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list representatives have the
standing to challenge the act of the Executive Department, especially if it impairs the constitutional
prerogatives, powers, and privileges of their office. While they admit that there is no incumbent Senator
who has taken part in the present petition, they nonetheless assert that they also stand to sustain a
derivative but substantial injury as legislators. They argue that under the Constitution, legislative power
is vested in both the Senate and the House of Representatives; consequently, it is the entire Legislative
Department that has a voice in determining whether or not the presence of foreign military should be
allowed. They maintain that as members of the Legislature, they have the requisite personality to bring
a suit, especially when a constitutional issue is raised.

The OSG counters130 that petitioners do not have any legal standing to file the suits concerning the lack
of Senate concurrence in EDCA. Respondent emphasizes that the power to concur in treaties and
international agreements is an "institutional prerogative" granted by the Constitution to the Senate.
Accordingly, the OSG argues that in case of an allegation of impairment of that power, the injured party
would be the Senate as an institution or any of its incumbent members, as it is the Senate's
constitutional function that is allegedly being violated.

The legal standing of an institution of the Legislature or of any of its Members has already been
recognized by this Court in a number of cases.131 What is in question here is the alleged impairment of
the constitutional duties and powers granted to, or the impermissible intrusion upon the domain of, the
Legislature or an institution thereof.132 In the case of suits initiated by the legislators themselves, this
Court has recognized their standing to question the validity of any official action that they claim infringes
the prerogatives, powers, and privileges vested by the Constitution in their office. 133 As aptly explained
by Justice Perfecto in Mabanag v. Lopez Vito:134

Being members of Congress, they are even duty bound to see that the latter act within the bounds
of the Constitution which, as representatives of the people, they should uphold, unless they are to
commit a flagrant betrayal of public trust. They are representatives of the sovereign people and it is
their sacred duty to see to it that the fundamental law embodying the will of the sovereign
people is not trampled upon. (Emphases supplied)

We emphasize that in a legislators' suit, those Members of Congress who are challenging the official
act have standing only to the extent that the alleged violation impinges on their right to participate in the
exercise of the powers of the institution of which they are members.135 Legislators have the standing "to
maintain inviolate the prerogatives, powers, and privileges vested by the Constitution in their office and
are allowed to sue to question the validity of any official action, which they claim infringes their
prerogatives as legislators."136 As legislators, they must clearly show that there was a direct injury to
their persons or the institution to which they belong.137

As correctly argued by respondent, the power to concur in a treaty or an international agreement is an

institutional prerogative granted by the Constitution to the Senate, not to the entire Legislature.
In Pimentel v. Office of the Executive Secretary, this Court did not recognize the standing of one of the
petitioners therein who was a member of the House of Representatives. The petition in that case
sought to compel the transmission to the Senate for concurrence of the signed text of the Statute of the
International Criminal Court. Since that petition invoked the power of the Senate to grant or withhold its
9

concurrence in a treaty entered into by the Executive Department, only then incumbent Senator
Page

Pimentel was allowed to assert that authority of the Senate of which he was a member.
 Therefore, none of the initial petitioners in the present controversy has the standing to maintain
the suits as legislators.

Nevertheless, this Court finds that there is basis for it to review the act of the Executive for the following
reasons.

In any case, petitioners raise issues involving matters of transcendental importance.

Petitioners138 argue that the Court may set aside procedural technicalities, as the present petition
tackles issues that are of transcendental importance. They point out that the matter before us is about
the proper exercise of the Executive Department's power to enter into international agreements in
relation to that of the Senate to concur in those agreements. They also assert that EDCA would cause
grave injustice, as well as irreparable violation of the Constitution and of the Filipino people's rights.

The OSG, on the other hand, insists139 that petitioners cannot raise the mere fact that the present
petitions involve matters of transcendental importance in order to cure their inability to comply with the
constitutional requirement of standing. Respondent bewails the overuse of "transcendental importance"
as an exception to the traditional requirements of constitutional litigation. It stresses that one of the
purposes of these requirements is to protect the Supreme Court from unnecessary litigation of
constitutional questions.

In a number of cases,140 this Court has indeed taken a liberal stance towards the requirement of legal
standing, especially when paramount interest is involved. Indeed, when those who challenge the official
act are able to craft an issue of transcendental significance to the people, the Court may exercise its
sound discretion and take cognizance of the suit. It may do so in spite of the inability of the petitioners
to show that they have been personally injured by the operation of a law or any other government act.

While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize that not
every other case, however strong public interest may be, can qualify as an issue of transcendental
importance. Before it can be impelled to brush aside the essential requisites for exercising its power of
judicial review, it must at the very least consider a number of factors: (1) the character of the funds or
other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the
lack of any other party that has a more direct and specific interest in raising the present questions. 141

An exhaustive evaluation of the memoranda of the parties, together with the oral arguments, shows that
petitioners have presented serious constitutional issues that provide ample justification for the Court to
set aside the rule on standing. The transcendental importance of the issues presented here is rooted in
the Constitution itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a much stricter
mechanism required before foreign military troops, facilities, or bases may be allowed in the country.
The DFA has already confirmed to the U.S. Embassy that "all internal requirements of the Philippines x
x x have already been complied with."142 It behooves the Court in this instance to take a liberal stance
towards the rule on standing and to determine forthwith whether there was grave abuse of discretion on
the part of the Executive Department.

We therefore rule that this case is a proper subject for judicial review.

B. Whether the President may enter into an executive agreement on foreign military
bases, troops, or facilities

C. Whether the provisions under EDCA are consistent with the Constitution, as well as
with existing laws and treaties

Issues B and C shall be discussed together infra.

1. The role of the President as the executor of the law includes the duty to defend the State, for
which purpose he may use that power in the conduct of foreign relations

Historically, the Philippines has mirrored the division of powers in the U.S. government. When the
Philippine government was still an agency of the Congress of the U.S., it was as an agent entrusted
with powers categorized as executive, legislative, and judicial, and divided among these three great
branches.143 By this division, the law implied that the divided powers cannot be exercised except by the
department given the power.144
10
Page
 This divide continued throughout the different versions of the Philippine Constitution and specifically
vested the supreme executive power in the Governor-General of the Philippines,145 a position inherited
by the President of the Philippines when the country attained independence. One of the principal
functions of the supreme executive is the responsibility for the faithful execution of the laws as
embodied by the oath of office.146 The oath of the President prescribed by the 1987 Constitution reads
thus:

I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as
President (or Vice-President or Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the
Nation. So help me God. (In case of affirmation, last sentence will be omitted.)147 (Emphases supplied)

This Court has interpreted the faithful execution clause as an obligation imposed on the President, and
not a separate grant of power.148 Section 1 7, Article VII of the Constitution, expresses this duty in no
uncertain terms and includes it in the provision regarding the President's power of control over the
executive department, viz:

The President shall have control of all the executive departments, bureaus, and offices. He shall ensure
that the laws be faithfully executed.

The equivalent provisions in the next preceding Constitution did not explicitly require this oath from the
President. In the 1973 Constitution, for instance, the provision simply gives the President control over
the ministries.149 A similar language, not in the form of the President's oath, was present in the 1935
Constitution, particularly in the enumeration of executive functions.150 By 1987, executive power was
codified not only in the Constitution, but also in the Administrative Code:151

SECTION 1. Power of Control. - The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied)

Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is intimately
related to the other executive functions. These functions include the faithful execution of the law in
autonomous regions;152 the right to prosecute crimes;153 the implementation of transportation
projects;154 the duty to ensure compliance with treaties, executive agreements and executive
orders;155 the authority to deport undesirable aliens;156 the conferment of national awards under the
President's jurisdiction;157 and the overall administration and control of the executive department.158

These obligations are as broad as they sound, for a President cannot function with crippled hands, but
must be capable of securing the rule of law within all territories of the Philippine Islands and be
empowered to do so within constitutional limits. Congress cannot, for instance, limit or take over the
President's power to adopt implementing rules and regulations for a law it has enacted. 159

More important, this mandate is self-executory by virtue of its being inherently executive in nature.160 As
Justice Antonio T. Carpio previously wrote,161

[i]f the rules are issued by the President in implementation or execution of self-executory constitutional
powers vested in the President, the rule-making power of the President is not a delegated legislative
power. The most important self-executory constitutional power of the President is the President's
constitutional duty and mandate to "ensure that the laws be faithfully executed." The rule is that the
President can execute the law without any delegation of power from the legislature.

The import of this characteristic is that the manner of the President's execution of the law, even
if not expressly granted by the law, is justified by necessity and limited only by law, since the
President must "take necessary and proper steps to carry into execution the law."162 Justice
George Malcolm states this principle in a grand manner:163

The executive should be clothed with sufficient power to administer efficiently the affairs of state. He
should have complete control of the instrumentalities through whom his responsibility is discharged. It is
still true, as said by Hamilton, that "A feeble executive implies a feeble execution of the government. A
feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it
may be in theory, must be in practice a bad government." The mistakes of State governments need not
be repeated here.

xxxx
11
Page
 Every other consideration to one side, this remains certain - The Congress of the United States clearly
intended that the Governor-General's power should be commensurate with his responsibility. The
Congress never intended that the Governor-General should be saddled with the responsibility of
administering the government and of executing the laws but shorn of the power to do so. The interests
of the Philippines will be best served by strict adherence to the basic principles of constitutional
government.

In light of this constitutional duty, it is the President's prerogative to do whatever is legal and necessary
for Philippine defense interests. It is no coincidence that the constitutional provision on the faithful
execution clause was followed by that on the President's commander-in-chief powers,164 which are
specifically granted during extraordinary events of lawless violence, invasion, or rebellion. And this duty
of defending the country is unceasing, even in times when there is no state of lawlesss violence,
invasion, or rebellion. At such times, the President has full powers to ensure the faithful execution of the
laws.

It would therefore be remiss for the President and repugnant to the faithful-execution clause of the
Constitution to do nothing when the call of the moment requires increasing the military's defensive
capabilities, which could include forging alliances with states that hold a common interest with the
Philippines or bringing an international suit against an offending state.

The context drawn in the analysis above has been termed by Justice Arturo D. Brion's Dissenting
Opinion as the beginning of a "patent misconception."165 His dissent argues that this approach taken in
analyzing the President's role as executor of the laws is preceded by the duty to preserve and defend
the Constitution, which was allegedly overlooked.166

In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the
analysis, if read holistically and in context. The concept that the President cannot function with crippled
hands and therefore can disregard the need for Senate concurrence in treaties167 was never expressed
or implied. Rather, the appropriate reading of the preceding analysis shows that the point being
elucidated is the reality that the President's duty to execute the laws and protect the Philippines is
inextricably interwoven with his foreign affairs powers, such that he must resolve issues imbued with
both concerns to the full extent of his powers, subject only to the limits supplied by law. In other words,
apart from an expressly mandated limit, or an implied limit by virtue of incompatibility, the manner of
execution by the President must be given utmost deference. This approach is not different from that
taken by the Court in situations with fairly similar contexts.

Thus, the analysis portrayed by the dissent does not give the President authority to bypass
constitutional safeguards and limits. In fact, it specifies what these limitations are, how these limitations
are triggered, how these limitations function, and what can be done within the sphere of constitutional
duties and limitations of the President.

Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the foreign
relations power of the President should not be interpreted in isolation.168 The analysis itself
demonstrates how the foreign affairs function, while mostly the President's, is shared in several
instances, namely in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on
foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties and international
agreements entered into prior to the Constitution and on the presence of foreign military troops, bases,
or facilities.

In fact, the analysis devotes a whole subheading to the relationship between the two major presidential
functions and the role of the Senate in it.

This approach of giving utmost deference to presidential initiatives in respect of foreign affairs is not
novel to the Court. The President's act of treating EDCA as an executive agreement is not the principal
power being analyzed as the Dissenting Opinion seems to suggest. Rather, the preliminary analysis is
in reference to the expansive power of foreign affairs. We have long treated this power as something
the Courts must not unduly restrict. As we stated recently in Vinuya v. Romulo:

To be sure, not all cases implicating foreign relations present political questions, and courts certainly
possess the authority to construe or invalidate treaties and executive agreements. However, the
question whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our
12

Constitution not to the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its nationals for
Page

reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
 courts to question. Neither could petitioners herein assail the said determination by the Executive
Department via the instant petition for certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that "[t]he
President is the sole organ of the nation in its external relations, and its sole representative with foreign
relations."

It is quite apparent that if, in the maintenance of our international relations,

embarrassment - perhaps serious embarrassment - is to be avoided and success for our
aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the President
a degree of discretion and freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover, he, not Congress, has
the better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his confidential sources of information. He
has his agents in the form of diplomatic, consular and other officials ....

This ruling has been incorporated in our jurisprudence through Bavan v. Executive
Secretary and Pimentel v. Executive Secretary; its overreaching principle was, perhaps, best
articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:

. . . The conduct of foreign relations is full of complexities and consequences, sometimes

with life and death significance to the nation especially in times of war. It can only be
entrusted to that department of government which can act on the basis of the best
available information and can decide with decisiveness .... It is also the President who
possesses the most comprehensive and the most confidential information about foreign
countries for our diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion in the conduct of
foreign affairs. The regularity, nay, validity of his actions are adjudged under less
stringent standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems with equally
undesirable consequences.169 (Emphases supplied)

Understandably, this Court must view the instant case with the same perspective and understanding,
knowing full well the constitutional and legal repercussions of any judicial overreach.

2. The plain meaning of the Constitution prohibits the entry of foreign military bases, troops or
facilities, except by way of a treaty concurred in by the Senate - a clear limitation on the
President's dual role as defender of the State and as sole authority in foreign relations.

Despite the President's roles as defender of the State and sole authority in foreign relations, the 1987
Constitution expressly limits his ability in instances when it involves the entry of foreign military bases,
troops or facilities. The initial limitation is found in Section 21 of the provisions on the Executive
Department: "No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate." The specific limitation is given by Section 25 of the
Transitory Provisions, the full text of which reads as follows:

SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other contracting State.

It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the basic
requirements of a treaty under Section 21 of Article VII. This means that both provisions must be read
as additional limitations to the President's overarching executive function in matters of defense and
foreign relations.

3. The President, however, may enter into an executive agreement on foreign military bases,
troops, or facilities, if (a) it is not the instrument that allows the presence of foreign military
13

bases, troops, or facilities; or (b) it merely aims to implement an existing law or treaty.
Page

Again we refer to Section 25, Article XVIII of the Constitution:

 SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other contracting State.
(Emphases supplied)

In view of this provision, petitioners argue170 that EDCA must be in the form of a "treaty" duly concurred
in by the Senate. They stress that the Constitution is unambigous in mandating the transmission to the
Senate of all international agreements concluded after the expiration of the MBA in 1991 - agreements
that concern the presence of foreign military bases, troops, or facilities in the country. Accordingly,
petitioners maintain that the Executive Department is not given the choice to conclude agreements like
EDCA in the form of an executive agreement.

This is also the view of the Senate, which, through a majority vote of 15 of its members - with 1 against
and 2 abstaining - says in SR 105171 that EDCA must be submitted to the Senate in the form of a treaty
for concurrence by at least two-thirds of all its members.

The Senate cites two constitutional provisions (Article VI, Section 21 and Article XVIII, Section 25) to
support its position. Compared with the lone constitutional provision that the Office of the Solicitor
General (OSG) cites, which is Article XVIII, Section 4(2), which includes the constitutionality of
"executive agreement(s)" among the cases subject to the Supreme Court's power of judicial review, the
Constitution clearly requires submission of EDCA to the Senate. Two specific provisions versus one
general provision means that the specific provisions prevail. The term "executive agreement" is "a term
wandering alone in the Constitution, bereft of provenance and an unidentified constitutional mystery."

The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even added that the
MDT, which the Executive claims to be partly implemented through EDCA, is already obsolete.

There are two insurmountable obstacles to this Court's agreement with SR 105, as well as with the
comment on interpellation made by Senator Santiago.

First, the concept of "executive agreement" is so well-entrenched in this Court's pronouncements on the
powers of the President. When the Court validated the concept of "executive agreement," it did so with
full knowledge of the Senate's role in concurring in treaties. It was aware of the problematique of
distinguishing when an international agreement needed Senate concurrence for validity, and when it did
not; and the Court continued to validate the existence of "executive agreements" even after the 1987
Constitution.172 This follows a long line of similar decisions upholding the power of the President to
enter into an executive agreement.173

Second, the MDT has not been rendered obsolescent, considering that as late as 2009,174 this Court
continued to recognize its validity.

Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads to the conclusion
that it applies only to a proposed agreement between our government and a foreign government,
whereby military bases, troops, or facilities of such foreign government would be "allowed" or would
"gain entry" Philippine territory.

Note that the provision "shall not be allowed" is a negative injunction. This wording signifies that the
President is not authorized by law to allow foreign military bases, troops, or facilities to enter the
Philippines, except under a treaty concurred in by the Senate. Hence, the constitutionally restricted
authority pertains to the entry of the bases, troops, or facilities, and not to the activities to be done after
entry.

Under the principles of constitutional construction, of paramount consideration is the plain meaning of
the language expressed in the Constitution, or the verba legis rule.175 It is presumed that the provisions
have been carefully crafted in order to express the objective it seeks to attain.176 It is incumbent upon
the Court to refrain from going beyond the plain meaning of the words used in the Constitution. It is
presumed that the framers and the people meant what they said when they said it, and that this
understanding was reflected in the Constitution and understood by the people in the way it was meant
to be understood when the fundamental law was ordained and promulgated.177 As this Court has often
said:
14

We look to the language of the document itself in our search for its meaning. We do not of course stop
Page

there, but that is where we begin. It is to be assumed that the words in which constitutional provisions
are couched express the objective sought to be attained. They are to be given their ordinary
 meaning except where technical terms are employed in which case the significance thus attached
to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the
rule of law to obtain that it should ever be present in the people's consciousness, its language as
much as possible should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and negates the power of
the courts to alter it, based on the postulate that the framers and the people mean what they say.
Thus, these are the cases where the need for construction is reduced to a
minimum.178 (Emphases supplied)

It is only in those instances in which the constitutional provision is unclear, ambiguous, or silent that
further construction must be done to elicit its meaning.179 In Ang Bagong Bayani-OFW v. Commission
on Elections,180 we reiterated this guiding principle:

it [is] safer to construe the Constitution from what appears upon its face. The proper
interpretation therefore depends more on how it was understood by the people adopting it than in
the framers' understanding thereof. (Emphases supplied)

The effect of this statement is surprisingly profound, for, if taken literally, the phrase "shall not be
allowed in the Philippines" plainly refers to the entry of bases, troops, or facilities in the country.
The Oxford English Dictionary defines the word "allow" as a transitive verb that means "to permit,
enable"; "to give consent to the occurrence of or relax restraint on (an action, event, or activity)"; "to
consent to the presence or attendance of (a person)"; and, when with an adverbial of place, "to permit
(a person or animal) to go, come, or be in, out, near, etc."181 Black's Law Dictionary defines the term as
one that means "[t]o grant, approve, or permit."182

The verb "allow" is followed by the word "in," which is a preposition used to indicate "place or position in
space or anything having material extension: Within the limits or bounds of, within (any place or
thing)."183 That something is the Philippines, which is the noun that follows.

It is evident that the constitutional restriction refers solely to the initial entry of the foreign military bases,
troops, or facilities. Once entry is authorized, the subsequent acts are thereafter subject only to the
limitations provided by the rest of the Constitution and Philippine law, and not to the Section 25
requirement of validity through a treaty.

The VFA has already allowed the entry of troops in the Philippines. This Court stated in Lim v.
Executive Secretary:

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word
"activities" arose from accident. In our view, it was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory
for purposes other than military. As conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue
operations to assist vessels in distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that "Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls
under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related
activities -as opposed to combat itself-such as the one subject of the instant petition, are indeed
authorized.184 (Emphasis supplied)

Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign military
troops in the Philippines,185 readily implying the legality of their initial entry into the country.

The OSG emphasizes that EDCA can be in the form of an executive agreement, since it merely
involves "adjustments in detail" in the implementation of the MDT and the VFA. 186 It points out that
there are existing treaties between the Philippines and the U.S. that have already been concurred in by
the Philippine Senate and have thereby met the requirements of the Constitution under Section 25.
Because of the status of these prior agreements, respondent emphasizes that EDCA need not be
transmitted to the Senate.

The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba
15

legis construction to the words of Article XVIII, Section 25.187 It claims that the provision is "neither
Page

plain, nor that simple."188 To buttress its disagreement, the dissent states that the provision refers to a
historical incident, which is the expiration of the 1947 MBA.189 Accordingly, this position requires
 questioning the circumstances that led to the historical event, and the meaning of the terms under
Article XVIII, Section 25.

This objection is quite strange. The construction technique of verba legis is not inapplicable just
because a provision has a specific historical context. In fact, every provision of the Constitution has a
specific historical context. The purpose of constitutional and statutory construction is to set tiers of
interpretation to guide the Court as to how a particular provision functions. Verba legis is of paramount
consideration, but it is not the only consideration. As this Court has often said:

We look to the language of the document itself in our search for its meaning. We do not of course
stop there, but that is where we begin. It is to be assumed that the words in which constitutional
provisions are couched express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case the significance thus
attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for
the rule of law to obtain that it should ever be present in the people's consciousness, its language as
much as possible should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and negates the power of
the courts to alter it, based on the postulate that the framers and the people mean what they say.
Thus, these are the cases where the need for construction is reduced to a
minimum.190 (Emphases supplied)

As applied, verba legis aids in construing the ordinary meaning of terms. In this case, the phrase being
construed is "shall not be allowed in the Philippines" and not the preceding one referring to "the
expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases, troops, or facilities." It is explicit in the
wording of the provision itself that any interpretation goes beyond the text itself and into the discussion
of the framers, the context of the Constitutional Commission's time of drafting, and the history of the
1947 MBA. Without reference to these factors, a reader would not understand those terms. However,
for the phrase "shall not be allowed in the Philippines," there is no need for such reference. The law is
clear. No less than the Senate understood this when it ratified the VFA.

4. The President may generally enter into executive agreements subject to limitations defined by
the Constitution and may be in furtherance of a treaty already concurred in by the Senate.

We discuss in this section why the President can enter into executive agreements.

It would be helpful to put into context the contested language found in Article XVIII, Section 25. Its more
exacting requirement was introduced because of the previous experience of the country when its
representatives felt compelled to consent to the old MBA.191 They felt constrained to agree to the MBA
in fulfilment of one of the major conditions for the country to gain independence from the U.S. 192 As a
result of that experience, a second layer of consent for agreements that allow military bases, troops and
facilities in the country is now articulated in Article XVIII of our present Constitution.

This second layer of consent, however, cannot be interpreted in such a way that we completely ignore
the intent of our constitutional framers when they provided for that additional layer, nor the vigorous
statements of this Court that affirm the continued existence of that class of international agreements
called "executive agreements."

The power of the President to enter into binding executive agreements without Senate concurrence is
already well-established in this jurisdiction.193 That power has been alluded to in our present and past
Constitutions,194 in various statutes,195 in Supreme Court decisions,196 and during the deliberations of
the Constitutional Commission.197 They cover a wide array of subjects with varying scopes and
purposes,198 including those that involve the presence of foreign military forces in the country.199

As the sole organ of our foreign relations200 and the constitutionally assigned chief architect of our
foreign policy,201 the President is vested with the exclusive power to conduct and manage the country's
interface with other states and governments. Being the principal representative of the Philippines, the
Chief Executive speaks and listens for the nation; initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and enters into international agreements; promotes
trade, investments, tourism and other economic relations; and settles international disputes with other
states.202

As previously discussed, this constitutional mandate emanates from the inherent power of the
16

President to enter into agreements with other states, including the prerogative to
conclude binding executive agreements that do not require further Senate concurrence. The existence
Page

of this presidential power203 is so well-entrenched that Section 5(2)(a), Article VIII of the Constitution,
 even provides for a check on its exercise. As expressed below, executive agreements are among those
official governmental acts that can be the subject of this Court's power of judicial review:

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or

validity of any treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question. (Emphases
supplied)

In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as

"international agreements embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangements of a more or less temporary
nature."204 In Bayan Muna v. Romulo, this Court further clarified that executive agreements can cover a
wide array of subjects that have various scopes and purposes.205 They are no longer limited to the
traditional subjects that are usually covered by executive agreements as identified in Eastern Sea
Trading. The Court thoroughly discussed this matter in the following manner:

The categorization of subject matters that may be covered by international

agreements mentioned in Eastern Sea Trading is not cast in stone. x x x.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern
Sea Trading. Since then, the conduct of foreign affairs has become more complex and the
domain of international law wider, as to include such subjects as human rights, the environment, and
the sea. In fact, in the US alone, the executive agreements executed by its President from 1980 to 2000
covered subjects such as defense, trade, scientific cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms limitation, and nuclear safety, among others.
Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on
the matter of which the international agreement format would be convenient to serve its best
interest. As Francis Sayre said in his work referred to earlier:

. . . It would be useless to undertake to discuss here the large variety of executive agreements as
such concluded from time to time. Hundreds of executive agreements, other than those entered into
under the trade-agreement act, have been negotiated with foreign governments. . . . They cover such
subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of
civil air craft, custom matters and commercial relations generally, international claims, postal matters,
the registration of trademarks and copyrights, etc .... (Emphases Supplied)

One of the distinguishing features of executive agreements is that their validity and effectivity are not
affected by a lack of Senate concurrence.206 This distinctive feature was recognized as early as
in Eastern Sea Trading (1961), viz:

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

xxxx

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

That notion was carried over to the present Constitution. In fact, the framers specifically deliberated on
whether the general term "international agreement" included executive agreements, and whether it was
necessary to include an express proviso that would exclude executive agreements from the
requirement of Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the Court's
ruling in Eastern Sea Trading, the Constitutional Commission members ultimately decided that the term
"international agreements" as contemplated in Section 21, Article VII, does not include executive
agreements, and that a proviso is no longer needed. Their discussion is reproduced below:207
17
Page
 MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have retained
the words "international agreement" which I think is the correct judgment on the matter because an
international agreement is different from a treaty. A treaty is a contract between parties which is in the
nature of international agreement and also a municipal law in the sense that the people are bound. So
there is a conceptual difference. However, I would like to be clarified if the international
agreements include executive agreements.

MR. CONCEPCION: That depends upon the parties. All parties to these international negotiations
stipulate the conditions which are necessary for the agreement or whatever it may be to become valid
or effective as regards the parties.

MS. AQUINO: Would that depend on the parties or would that depend on the nature of the executive
agreement? According to common usage, there are two types of executive agreement: one is
purely proceeding from an executive act which affects external relations independent of the
legislative and the other is an executive act in pursuance of legislative authorization. The first
kind might take the form of just conventions or exchanges of notes or protocol while the other,
which would be pursuant to the legislative authorization, may be in the nature of commercial
agreements.

MR. CONCEPCION: Executive agreements are generally made to implement a treaty already
enforced or to determine the details for the implementation of the treaty. We are speaking of
executive agreements, not international agreements.

MS. AQUINO: I am in full agreement with that, except that it does not cover the first kind of executive
agreement which is just protocol or an exchange of notes and this would be in the nature of
reinforcement of claims of a citizen against a country, for example.

MR. CONCEPCION: The Commissioner is free to require ratification for validity insofar as the
Philippines is concerned.

MS. AQUINO: It is my humble submission that we should provide, unless the Committee explains to
us otherwise, an explicit proviso which would except executive agreements from the requirement
of concurrence of two-thirds of the Members of the Senate. Unless I am enlightened by the
Committee I propose that tentatively, the sentence should read. "No treaty or international agreement
EXCEPT EXECUTIVE AGREEMENTS shall be valid and effective."

FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea Trading]
might help clarify this:

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

Agreements with respect to the registration of trademarks have been concluded by the executive of
various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International
agreements involving political issues or changes of national policy and those involving
international agreements of a permanent character usually take the form of treaties. But international
agreements embodying adjustments of detail, carrying out well established national policies and
traditions and those involving arrangements of a more or less temporary nature usually take the
form of executive agreements.

MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?

FR. BERNAS: What we are referring to, therefore, when we say international agreements which
need concurrence by at least two-thirds are those which are permanent in nature.

MS. AQUINO: And it may include commercial agreements which are executive agreements essentially
but which are proceeding from the authorization of Congress. If that is our understanding, then I am
willing to withdraw that amendment.
18

FR. BERNAS: If it is with prior authorization of Congress, then it does not need subsequent
Page

concurrence by Congress.
 MS. AQUINO: In that case, I am withdrawing my amendment.

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

MS. AQUINO: Yes. There is already an agreement among us on the definition of "executive
agreements" and that would make unnecessary any explicit proviso on the matter.

xxx

MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard that
these executive agreements must rely on treaties. In other words, there must first be treaties.

MR. CONCEPCION: No, I was speaking about the common use, as executive agreements being the
implementation of treaties, details of which do not affect the sovereignty of the State.

MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99 years be
considered permanent? What would be the measure of permanency? I do not conceive of a treaty that
is going to be forever, so there must be some kind of a time limit.

MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement should
be included in a provision of the Constitution requiring the concurrence of Congress.

MR. GUINGONA: It depends on the concept of the executive agreement of which I am not clear. If the
executive agreement partakes of the nature of a treaty, then it should also be included.

MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power of the
Constitutional Commission to require that.

MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international
agreements" would include executive agreements.

MR. CONCEPCION: No, not necessarily; generally no.

xxx

MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore, that as
far as the Committee is concerned, the term "international agreements" does not include the
term "executive agreements" as read by the Commissioner in that text?

FR. BERNAS: Yes. (Emphases Supplied)

The inapplicability to executive agreements of the requirements under Section 21 was again recognized
in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided under the aegis of the
present Constitution, quoted Eastern Sea Trading in reiterating that executive agreements are valid and
binding even without the concurrence of the Senate.

Executive agreements may dispense with the requirement of Senate concurrence because of the legal
mandate with which they are concluded. As culled from the afore-quoted deliberations of the
Constitutional Commission, past Supreme Court Decisions, and works of noted scholars,208 executive
agreements merely involve arrangements on the implementation of existing policies, rules, laws, or
agreements. They are concluded (1) to adjust the details of a treaty;209 (2) pursuant to or upon
confirmation by an act of the Legislature;210 or (3) in the exercise of the President's independent powers
under the Constitution.211 The raison d'etre of executive agreements hinges on prior constitutional or
legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in international
agreements. International practice has accepted the use of various forms and designations of
international agreements, ranging from the traditional notion of a treaty - which connotes a formal,
solemn instrument - to engagements concluded in modem, simplified forms that no longer necessitate
ratification.212 An international agreement may take different forms: treaty, act, protocol,
19

agreement, concordat, compromis d'arbitrage, convention, covenant, declaration, exchange of notes,

statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other
Page

form.213 Consequently, under international law, the distinction between a treaty and an international
 agreement or even an executive agreement is irrelevant for purposes of determining international rights
and obligations.

However, this principle does not mean that the domestic law distinguishing treaties, international
agreements, and executive agreements is relegated to a mere variation in form, or that the
constitutional requirement of Senate concurrence is demoted to an optional constitutional directive.
There remain two very important features that distinguish treaties from executive agreements and
translate them into terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of
executive agreements under serious question for the main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of
these rules.214 In turn, executive agreements cannot create new international obligations that are not
expressly allowed or reasonably implied in the law they purport to implement.

Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate215 unlike executive agreements, which are solely
executive actions.216 Because of legislative participation through the Senate, a treaty is regarded as
being on the same level as a statute.217 If there is an irreconcilable conflict, a later law or treaty takes
precedence over one that is prior.218 An executive agreement is treated differently. Executive
agreements that are inconsistent with either a law or a treaty are considered ineffective. 219 Both types
of international agreement are nevertheless subject to the supremacy of the Constitution. 220

This rule does not imply, though, that the President is given carte blanche to exercise this discretion.
Although the Chief Executive wields the exclusive authority to conduct our foreign relations, this power
must still be exercised within the context and the parameters set by the Constitution, as well as by
existing domestic and international laws. There are constitutional provisions that restrict or limit the
President's prerogative in concluding international agreements, such as those that involve the following:

a. The policy of freedom from nuclear weapons within Philippine territory221

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 Congress222

c. The grant of any tax exemption, which must be pursuant to a law concurred in by a majority of
all the Members of Congress223

d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that must be
previously concurred in by the Monetary Board224

e. The authorization of the presence of foreign military bases, troops, or facilities in the country
must be in the form of a treaty duly concurred in by the Senate.225

f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is required,
should the form of the government chosen be a treaty.

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

No court can tell the President to desist from choosing an executive agreement over a treaty to embody
an international agreement, unless the case falls squarely within Article VIII, Section 25.

As can be gleaned from the debates among the members of the Constitutional Commission, they were
aware that legally binding international agreements were being entered into by countries in forms other
than a treaty. At the same time, it is clear that they were also keen to preserve the concept of
"executive agreements" and the right of the President to enter into such agreements.

What we can glean from the discussions of the Constitutional Commissioners is that they understood
the following realities:

1. Treaties, international agreements, and executive agreements are all constitutional

20

manifestations of the conduct of foreign affairs with their distinct legal characteristics.
Page
 a. Treaties are formal contracts between the Philippines and other States-parties, which
are in the nature of international agreements, and also of municipal laws in the sense of
their binding nature.226

b. International agreements are similar instruments, the provisions of which may require
the ratification of a designated number of parties thereto. These agreements involving
political issues or changes in national policy, as well as those involving international
agreements of a permanent character, usually take the form of treaties. They may also
include commercial agreements, which are executive agreements essentially, but which
proceed from previous authorization by Congress, thus dispensing with the requirement
of concurrence by the Senate.227

c. Executive agreements are generally intended to implement a treaty already enforced

or to determine the details of the implementation thereof that do not affect the
sovereignty of the State.228

2. Treaties and international agreements that cannot be mere executive agreements must, by
constitutional decree, be concurred in by at least two-thirds of the Senate.

3. However, an agreement - the subject of which is the entry of foreign military troops, bases, or
facilities - is particularly restricted. The requirements are that it be in the form of a treaty
concurred in by the Senate; that when Congress so requires, it be ratified by a majority of the
votes cast by the people in a national referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.

4. Thus, executive agreements can continue to exist as a species of international agreements.

That is why our Court has ruled the way it has in several cases.

In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her constitutional
authority and discretion when she chose to enter into the RP-U.S. Non-Surrender Agreement in the
form of an executive agreement, instead of a treaty, and in ratifying the agreement without Senate
concurrence. The Court en banc discussed this intrinsic presidential prerogative as follows:

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature
of a treaty; hence, it must be duly concurred in by the Senate. x x x x. Pressing its point, petitioner
submits that the subject of the Agreement does not fall under any of the subject-categories that xx x
may be covered by an executive agreement, such as commercial/consular relations, most-favored
nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements
and settlement of claims.

The categorization of subject matters that may be covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form of agreement is
the parties' intent and desire to craft an international agreement in the form they so wish to
further their respective interests. Verily, the matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under the pacta sunt servanda principle.

xxxx

But over and above the foregoing considerations is the fact that - save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is required, the Constitution
does not classify any subject, like that involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely prescribes is that treaties need the concurrence of
the Senate by a vote defined therein to complete the ratification process.

xxxx

x x x. As the President wields vast powers and influence, her conduct in the external affairs of the
nation is, as Bayan would put it, "executive altogether." The right of the President to enter into or
21

ratify binding executive agreements has been confirmed by long practice.

Page
 In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the end of the day, the President -
by ratifying, thru her deputies, the non-surrender agreement - did nothing more than discharge
a constitutional duty and exercise a prerogative that pertains to her office. (Emphases supplied)

Indeed, in the field of external affairs, the President must be given a larger measure of authority and
wider discretion, subject only to the least amount of checks and restrictions under the
Constitution.229 The rationale behind this power and discretion was recognized by the Court in Vinuya v.
Executive Secretary, cited earlier.230

Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of International Agreements
and its Ratification, thus, correctly reflected the inherent powers of the President when it stated that the
DFA "shall determine whether an agreement is an executive agreement or a treaty."

Accordingly, in the exercise of its power of judicial review, the Court does not look into whether an
international agreement should be in the form of a treaty or an executive agreement, save in cases in
which the Constitution or a statute requires otherwise. Rather, in view of the vast constitutional powers
and prerogatives granted to the President in the field of foreign affairs, the task of the Court is to
determine whether the international agreement is consistent with the applicable limitations.

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

The practice of resorting to executive agreements in adjusting the details of a law or a treaty that
already deals with the presence of foreign military forces is not at all unusual in this jurisdiction. In fact,
the Court has already implicitly acknowledged this practice in Lim v. Executive Secretary.231 In that
case, the Court was asked to scrutinize the constitutionality of the Terms of Reference of the Balikatan
02-1 joint military exercises, which sought to implement the VFA. Concluded in the form of an executive
agreement, the Terms of Reference detailed the coverage of the term "activities" mentioned in the
treaty and settled the matters pertaining to the construction of temporary structures for the U.S. troops
during the activities; the duration and location of the exercises; the number of participants; and the
extent of and limitations on the activities of the U.S. forces. The Court upheld the Terms of Reference
as being consistent with the VFA. It no longer took issue with the fact that the Balikatan Terms of
Reference was not in the form of a treaty concurred in by the Senate, even if it dealt with the regulation
of the activities of foreign military forces on Philippine territory.

In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive agreement in an
attempt to adjust the details of a provision of the VFA. The Philippines and the U.S. entered into the
Romulo-Kenney Agreement, which undertook to clarify the detention of a U.S. Armed Forces member,
whose case was pending appeal after his conviction by a trial court for the crime of rape. In testing the
validity of the latter agreement, the Court precisely alluded to one of the inherent limitations of an
executive agreement: it cannot go beyond the terms of the treaty it purports to implement. It was
eventually ruled that the Romulo-Kenney Agreement was "not in accord" with the VFA, since the former
was squarely inconsistent with a provision in the treaty requiring that the detention be "by Philippine
authorities." Consequently, the Court ordered the Secretary of Foreign Affairs to comply with the VFA
and "forthwith negotiate with the United States representatives for the appropriate agreement on
detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA. "233

Culling from the foregoing discussions, we reiterate the following pronouncements to guide us in
resolving the present controversy:

1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must be
fulfilled by the international agreement allowing the presence of foreign military bases, troops, or
facilities in the Philippines: (a) the agreement must be in the form of a treaty, and (b) it must be
duly concurred in by the Senate.

2. If the agreement is not covered by the above situation, then the President may choose the
form of the agreement (i.e., either an executive agreement or a treaty), provided that the
agreement dealing with foreign military bases, troops, or facilities is not the principal agreement
that first allows their entry or presence in the Philippines.

3. The executive agreement must not go beyond the parameters, limitations, and standards set
22

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.
Page
 4. The executive agreement must be consistent with the Constitution, as well as with existing
laws and treaties.

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

7. EDCA is consistent with the content, purpose, and framework of the MDT and the VFA

The starting point of our analysis is the rule that "an executive agreement xx x may not be used to
amend a treaty."234 In Lim v. Executive Secretary and in Nicolas v. Romulo, the Court approached the
question of the validity of executive agreements by comparing them with the general framework and the
specific provisions of the treaties they seek to implement.

In Lim, the Terms of Reference of the joint military exercises was scrutinized by studying "the
framework of the treaty antecedents to which the Philippines bound itself,"235 i.e., the MDT and the
VFA. The Court proceeded to examine the extent of the term "activities" as contemplated in Articles
1236 and II237 of the VFA. It later on found that the term "activities" was deliberately left undefined and
ambiguous in order to permit "a wide scope of undertakings subject only to the approval of the
Philippine government"238 and thereby allow the parties "a certain leeway in negotiation."239 The Court
eventually ruled that the Terms of Reference fell within the sanctioned or allowable activities, especially
in the context of the VFA and the MDT.

The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of the VFA on
custody and detention to ascertain the validity of the Romulo-Kenney Agreement.240 It eventually found
that the two international agreements were not in accord, since the Romulo-Kenney Agreement had
stipulated that U.S. military personnel shall be detained at the U.S. Embassy Compound and guarded
by U.S. military personnel, instead of by Philippine authorities. According to the Court, the parties
"recognized the difference between custody during the trial and detention after conviction." 241 Pursuant
to Article V(6) of the VFA, the custody of a U.S. military personnel resides with U.S. military authorities
during trial. Once there is a finding of guilt, Article V(l0) requires that the confinement or detention be
"by Philippine authorities."

Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially modifies or amends
the VFA"242 and follows with an enumeration of the differences between EDCA and the VFA. While
these arguments will be rebutted more fully further on, an initial answer can already be given to each of
the concerns raised by his dissent.

The first difference emphasized is that EDCA does not only regulate visits as the VFA does, but allows
temporary stationing on a rotational basis of U.S. military personnel and their contractors in physical
locations with permanent facilities and pre-positioned military materiel.

This argument does not take into account that these permanent facilities, while built by U.S. forces, are
to be owned by the Philippines once constructed.243 Even the VFA allowed construction for the benefit
of U.S. forces during their temporary visits.

The second difference stated by the dissent is that EDCA allows the prepositioning of military materiel,
which can include various types of warships, fighter planes, bombers, and vessels, as well as land and
amphibious vehicles and their corresponding ammunition.244

However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and aircraft to be
brought into the country. Articles VII and VIII of the VFA contemplates that U.S. equipment, materials,
supplies, and other property are imported into or acquired in the Philippines by or on behalf of the U.S.
Armed Forces; as are vehicles, vessels, and aircraft operated by or for U.S. forces in connection with
activities under the VFA. These provisions likewise provide for the waiver of the specific duties, taxes,
charges, and fees that correspond to these equipment.

The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the entry
of troops for training exercises, whereas EDCA allows the use of territory for launching military and
paramilitary operations conducted in other states.245 The dissent of Justice Teresita J. Leonardo-De
Castro also notes that VFA was intended for non-combat activides only, whereas the entry and
activities of U.S. forces into Agreed Locations were borne of military necessity or had a martial
23

character, and were therefore not contemplated by the VFA.246

Page
 This Court's jurisprudence however established in no uncertain terms that combat-related activities, as
opposed to actual combat, were allowed under the MDT and VFA, viz:

Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that
combat-related activities as opposed to combat itself such as the one subject of the instant petition, are
indeed authorized.247

Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from the intent
of the VFA since EDCA's combat-related components are allowed under the treaty.

Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the VFA and
EDCA deal with the presence of U.S. forces within the Philippines, but make no mention of being
platforms for activity beyond Philippine territory. While it may be that, as applied, military operations
under either the VFA or EDCA would be carried out in the future the scope of judicial review does not
cover potential breaches of discretion but only actual occurrences or blatantly illegal provisions. Hence,
we cannot invalidate EDCA on the basis of the potentially abusive use of its provisions.

The fourth difference is that EDCA supposedly introduces a new concept not contemplated in the VFA
or the MDT: Agreed Locations, Contractors, Pre-positioning, and Operational Control.248

As previously mentioned, these points shall be addressed fully and individually in the latter analysis of
EDCA's provisions. However, it must already be clarified that the terms and details used by an
implementing agreement need not be found in the mother treaty. They must be sourced from the
authority derived from the treaty, but are not necessarily expressed word-for-word in the mother treaty.
This concern shall be further elucidated in this Decision.

The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have provisions that
may be construed as a restriction on or modification of obligations found in existing statues, including
the jurisdiction of courts, local autonomy, and taxation. Implied in this argument is that EDCA contains
such restrictions or modifications.249

This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA and
EDCA ensure Philippine jurisdiction in all instances contemplated by both agreements, with the
exception of those outlined by the VFA in Articles III-VI. In the VFA, taxes are clearly waived whereas in
EDCA, taxes are assumed by the government as will be discussed later on. This fact does not,
therefore, produce a diminution of jurisdiction on the part of the Philippines, but rather a recognition of
sovereignty and the rights that attend it, some of which may be waived as in the cases under Articles
III-VI of the VFA.

Taking off from these concerns, the provisions of EDCA must be compared with those of the MDT and
the VFA, which are the two treaties from which EDCA allegedly draws its validity.

"Authorized presence" under the VFA versus "authorized activities" under EDCA: (1) U.S.
personnel and (2) U.S. contractors

The OSG argues250 that EDCA merely details existing policies under the MDT and the VFA. It explains
that EDCA articulates the principle of defensive preparation embodied in Article II of the MDT; and
seeks to enhance the defensive, strategic, and technological capabilities of both parties pursuant to the
objective of the treaty to strengthen those capabilities to prevent or resist a possible armed attack.
Respondent also points out that EDCA simply implements Article I of the VFA, which already allows the
entry of U.S. troops and personnel into the country. Respondent stresses this Court's recognition in Lim
v. Executive Secretary that U.S. troops and personnel are authorized to conduct activities that promote
the goal of maintaining and developing their defense capability.

Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT. According
to them, the treaty does not specifically authorize the entry of U.S. troops in the country in order to
maintain and develop the individual and collective capacities of both the Philippines and the U.S. to
resist an armed attack. They emphasize that the treaty was concluded at a time when there was as yet
no specific constitutional prohibition on the presence of foreign military forces in the country.

Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the
agreement covers only short-term or temporary visits of U.S. troops "from time to time" for the specific
purpose of combined military exercises with their Filipino counterparts. They stress that, in contrast,
24

U.S. troops are allowed under EDCA to perform activities beyond combined military exercises, such as
Page

those enumerated in Articles 111(1) and IV(4) thereof. Furthermore, there is some degree of
 permanence in the presence of U.S. troops in the country, since the effectivity of EDCA is continuous
until terminated. They proceed to argue that while troops have a "rotational" presence, this scheme in
fact fosters their permanent presence.

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

We shall first deal with the recognition under EDCA of the presence in the country of three distinct
classes of individuals who will be conducting different types of activities within the Agreed Locations: (1)
U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S. contractors. The agreement refers to
them as follows:

"United States personnel" means United States military and civilian personnel temporarily in the
territory of the Philippines in connection with activities approved by the Philippines, as those terms
are defined in the VFA.252

"United States forces" means the entity comprising United States personnel and all property,
equipment, and materiel of the United States Armed Forces present in the territory of the
Philippines.253

"United States contractors" means companies and firms, and their employees, under contract or
subcontract to or on behalf of the United States Department of Defense. United States contractors
are not included as part of the definition of United States personnel in this Agreement, including
within the context of the VFA.254

United States forces may contract for any materiel, supplies, equipment, and services (including
construction) to be furnished or undertaken in the territory of the Philippines without restriction as to
choice of contractor, supplier, or person who provides such materiel, supplies, equipment,
or services. Such contracts shall be solicited, awarded, and administered in accordance with the laws
and regulations of the United States.255 (Emphases Supplied)

A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal with the
entry into the country of U.S. personnel and contractors per se. While Articles I(l)(b)256 and
II(4)257 speak of "the right to access and use" the Agreed Locations, their wordings indicate the
presumption that these groups have already been allowed entry into Philippine territory, for which,
unlike the VFA, EDCA has no specific provision. Instead, Article II of the latter simply alludes to the
VFA in describing U.S. personnel, a term defined under Article I of the treaty as follows:

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

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

2. The term "civilian personnel" refers to individuals who are neither nationals of nor
ordinarily resident in the Philippines and who are employed by the United States
armed forces or who are accompanying the United States armed forces, such as
employees of the American Red Cross and the United Services Organization.258

Article II of EDCA must then be read with Article III of the VFA, which provides for the entry
accommodations to be accorded to U.S. military and civilian personnel:

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

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

3. The following documents only, which shall be required in respect of United States military
personnel who enter the Philippines; xx xx.
25
Page
 4. United States civilian personnel shall be exempt from visa requirements but shall
present, upon demand, valid passports upon entry and departure of the Philippines.
(Emphases Supplied)

By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military and civilian
personnel to be "temporarily in the Philippines," so long as their presence is "in connection with
activities approved by the Philippine Government." The Philippines, through Article III, even guarantees
that it shall facilitate the admission of U.S. personnel into the country and grant exemptions from
passport and visa regulations. The VFA does not even limit their temporary presence to specific
locations.

Based on the above provisions, the admission and presence of U.S. military and civilian personnel
in Philippine territory are already allowed under the VFA, the treaty supposedly being
implemented by EDCA. What EDCA has effectively done, in fact, is merely provide the mechanism to
identify the locations in which U.S. personnel may perform allowed activities pursuant to the VFA. As
the implementing agreement, it regulates and limits the presence of U.S. personnel in the country.

b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory; their
entry must be sourced from extraneous Philippine statutes and regulations for the admission of alien
employees or business persons.

Of the three aforementioned classes of individuals who will be conducting certain activities within the
Agreed Locations, we note that only U.S. contractors are not explicitly mentioned in the VFA. This does
not mean, though, that the recognition of their presence under EDCA is ipso facto an amendment of the
treaty, and that there must be Senate concurrence before they are allowed to enter the country.

Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the Philippines. Articles
III and IV, in fact, merely grant them the right of access to, and the authority to conduct certain activities
within the Agreed Locations. Since Article II(3) of EDCA specifically leaves out U.S. contractors from
the coverage of the VFA, they shall not be granted the same entry accommodations and privileges as
those enjoyed by U.S. military and civilian personnel under the VFA.

Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S.
contractors into the country.259 We emphasize that the admission of aliens into Philippine territory is "a
matter of pure permission and simple tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel who are accorded entry accommodations,
U.S. contractors are subject to Philippine immigration laws.261 The latter must comply with our visa and
passport regulations262 and prove that they are not subject to exclusion under any provision of
Philippine immigration laws.263 The President may also deny them entry pursuant to his absolute and
unqualified power to prohibit or prevent the admission of aliens whose presence in the country would
be inimical to public interest.264

In the same vein, the President may exercise the plenary power to expel or deport U.S.
contractors265 as may be necessitated by national security, public safety, public health, public morals,
and national interest.266 They may also be deported if they are found to be illegal or undesirable aliens
pursuant to the Philippine Immigration Act267 and the Data Privacy Act.268 In contrast, Article 111(5) of
the VFA requires a request for removal from the Philippine government before a member of the U.S.
personnel may be "dispos[ed] xx x outside of the Philippines."

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

We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the
activities in which U.S. military and civilian personnel may engage:

MUTUAL DEFENSE TREATY

Article II

In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly
by self-help and mutual aid will maintain and develop their individual and collective capacity to
resist armed attack.
26

Article III
Page
 The Parties, through their Foreign Ministers or their deputies, will consult together from time to
time regarding the implementation of this Treaty and whenever in the opinion of either of them the
territorial integrity, political independence or security of either of the Parties is threatened by external
armed attack in the Pacific.

VISITING FORCES AGREEMENT

Preamble

xxx

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic of the
Philippines;

Considering that cooperation between the United States and the Republic of the Philippines promotes
their common security interests;

xxx

Article I - Definitions

As used in this Agreement, "United States personnel" means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the Philippine
Government. Within this definition: xx x

Article II - Respect for Law

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

Article VII - Importation and Exportation

1. United States Government equipment, materials, supplies, and other property imported into or
acquired in the Philippines by or on behalf of the United States armed forces in connection with
activities to which this agreement applies, shall be free of all Philippine duties, taxes and other
similar charges. Title to such property shall remain with the United States, which may remove such
property from the Philippines at any time, free from export duties, taxes, and other similar charges. x x
x.

Article VIII - Movement of Vessels and Aircraft

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

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

Manifest in these provisions is the abundance of references to the creation of further "implementing
arrangements" including the identification of "activities [to be] approved by the Philippine Government."
To determine the parameters of these implementing arrangements and activities, we referred to the
content, purpose, and framework of the MDT and the VFA.

By its very language, the MDT contemplates a situation in which both countries shall engage
in joint activities, so that they can maintain and develop their defense capabilities. The wording itself
evidently invites a reasonable construction that the joint activities shall involve joint military trainings,
27

maneuvers, and exercises. Both the interpretation269 and the subsequent practice270 of the parties show
that the MDT independently allows joint military exercises in the country. Lim v. Executive
Page

Secretary271 and Nicolas v. Romulo272 recognized that Balikatan exercises, which are activities that
 seek to enhance and develop the strategic and technological capabilities of the parties to resist an
armed attack, "fall squarely under the provisions of the RP-US MDT."273 In Lim, the Court especially
noted that the Philippines and the U.S. continued to conduct joint military exercises even after the
expiration of the MBA and even before the conclusion of the VFA.274 These activities presumably
related to the Status of Forces Agreement, in which the parties agreed on the status to be accorded to
U.S. military and civilian personnel while conducting activities in the Philippines in relation to the
MDT.275

Further, it can be logically inferred from Article V of the MDT that these joint activities may be
conducted on Philippine or on U.S. soil. The article expressly provides that the term armed
attack includes "an armed attack on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in
the Pacific." Surely, in maintaining and developing our defense capabilities, an assessment or training
will need to be performed, separately and jointly by self-help and mutual aid, in the territories of the
contracting parties. It is reasonable to conclude that the assessment of defense capabilities would
entail understanding the terrain, wind flow patterns, and other environmental factors unique to the
Philippines.

It would also be reasonable to conclude that a simulation of how to respond to attacks in vulnerable
areas would be part of the training of the parties to maintain and develop their capacity to resist an
actual armed attack and to test and validate the defense plan of the Philippines. It is likewise
reasonable to imagine that part of the training would involve an analysis of the effect of the weapons
that may be used and how to be prepared for the eventuality. This Court recognizes that all of this may
require training in the area where an armed attack might be directed at the Philippine territory.

The provisions of the MDT must then be read in conjunction with those of the VFA.

Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the Philippines
is "in connection with activities approved by the Philippine Government." While the treaty does not
expressly enumerate or detail the nature of activities of U.S. troops in the country, its Preamble makes
explicit references to the reaffirmation of the obligations of both countries under the MDT. These
obligations include the strengthening of international and regional security in the Pacific area and the
promotion of common security interests.

The Court has already settled in Lim v. Executive Secretary that the phrase "activities approved by the
Philippine Government" under Article I of the VFA was intended to be ambiguous in order to afford the
parties flexibility to adjust the details of the purpose of the visit of U.S. personnel.276 In ruling that the
Terms of Reference for the Balikatan Exercises in 2002 fell within the context of the treaty, this Court
explained:

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the
word "activities" arose from accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint exercises may include
training on new techniques of patrol and surveillance to protect the nation's marine resources, sea
search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action
projects such as the building of school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting and training
exercise," falls under the umbrella of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities - as opposed to combat itself- such as the one subject of the
instant petition, are indeed authorized. (Emphases Supplied)

The joint report of the Senate committees on foreign relations and on national defense and security
further explains the wide range and variety of activities contemplated in the VFA, and how these
activities shall be identified:277

These joint exercises envisioned in the VFA are not limited to combat-related activities; they have
a wide range and variety. They include exercises that will reinforce the AFP's ability to acquire new
techniques of patrol and surveillance to protect the country's maritime resources; sea-search and
rescue operations to assist ships in distress; and disaster-relief operations to aid the civilian victims
28

of natural calamities, such as earthquakes, typhoons and tidal waves.

Page

xxxx
 Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance and
equipment repair; civic-action projects; and consultations and meetings of the Philippine-U.S. Mutual
Defense Board. It is at the level of the Mutual Defense Board-which is headed jointly by the Chief of
Staff of the AFP and the Commander in Chief of the U.S. Pacific Command-that the VFA exercises
are planned. Final approval of any activity involving U.S. forces is, however, invariably given by
the Philippine Government.

xxxx

Siazon clarified that it is not the VFA by itself that determines what activities will be
conducted between the armed forces of the U.S. and the Philippines. The VFA regulates and
provides the legal framework for the presence, conduct and legal status of U.S. personnel while
they are in the country for visits, joint exercises and other related activities. (Emphases Supplied)

What can be gleaned from the provisions of the VFA, the joint report of the Senate committees
on foreign relations and on national defense and security, and the ruling of this Court in Lim is
that the "activities" referred to in the treaty are meant to be specified and
identified infurther agreements. EDCA is one such agreement.

EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S. personnel
referred to in the VFA. EDCA allows U.S. military and civilian personnel to perform "activities approved
by the Philippines, as those terms are defined in the VFA"278 and clarifies that these activities include
those conducted within the Agreed Locations:

1. Security cooperation exercises; joint and combined training activities; humanitarian assistance and
disaster relief activities; and such other activities as may be agreed upon by the Parties 279

2. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels, and aircraft; temporary accommodation of personnel;
communications; prepositioning of equipment, supplies, and materiel; deployment of forces and
materiel; and such other activities as the Parties may agree280

3. Exercise of operational control over the Agreed Locations for construction activities and other types
of activity, including alterations and improvements thereof 281

4. Exercise of all rights and authorities within the Agreed Locations that are necessary for their
operational control or defense, including the adoption of apfropriate measures to protect U.S. forces
and contractors282

5. Use of water, electricity, and other public utilities283

6. Operation of their own telecommunication systems, including the utilization of such means and
services as are required to ensure the full ability to operate telecommunication systems, as well as the
use of the necessary radio spectrum allocated for this purpose284

According to Article I of EDCA, one of the purposes of these activities is to maintain and develop, jointly
and by mutual aid, the individual and collective capacities of both countries to resist an armed attack. It
further states that the activities are in furtherance of the MDT and within the context of the VFA.

We note that these planned activities are very similar to those under the Terms of
Reference285 mentioned in Lim. Both EDCA and the Terms of Reference authorize the U.S. to perform
the following: (a) participate in training exercises; (b) retain command over their forces; (c) establish
temporary structures in the country; (d) share in the use of their respective resources, equipment and
other assets; and (e) exercise their right to self-defense. We quote the relevant portion of the Terms
and Conditions as follows:286

I. POLICY LEVEL

xxxx

No permanent US basing and support facilities shall be established. Temporary structures such as
those for troop billeting, classroom instruction and messing may be set up for use by RP and US
29

Forces during the Exercise.

Page
 The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of
the Chief of Staff, AFP. In no instance will US Forces operate independently during field training
exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces
under the overall authority of the Exercise Co-Directors. RP and US participants shall comply with
operational instructions of the AFP during the FTX.

The exercise shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct
the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six
month Exercise period.

The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to
Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising,
assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related
activities in Cebu will be for support of the Exercise.

xx xx.

US exercise participants shall not engage in combat, without prejudice to their right of self-
defense.

These terms of Reference are for purposes of this Exercise only and do not create additional legal
obligations between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and
training of RP and US Forces with the primary objective of enhancing the operational
capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic
regulations.

2. ADMINISTRATION & LOGISTICS

xxxx

a. RP and US participating forces may share, in accordance with their respective laws and regulations,
in the use of their resources, equipment and other assets. They will use their respective
logistics channels. x x x. (Emphases Supplied)

After a thorough examination of the content, purpose, and framework of the MDT and the VFA, we find
that EDCA has remained within the parameters set in these two treaties. Just like the Terms of
Reference mentioned in Lim, mere adjustments in detail to implement the MDT and the VFA can be in
the form of executive agreements.

Petitioners assert287 that the duration of the activities mentioned in EDCA is no longer consistent with
the temporary nature of the visits as contemplated in the VFA. They point out that Article XII(4) of
EDCA has an initial term of 10 years, a term automatically renewed unless the Philippines or the U.S.
terminates the agreement. According to petitioners, such length of time already has a badge of
permanency.

In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her Concurring and
Dissenting Opinion that the VFA contemplated mere temporary visits from U.S. forces, whereas EDCA
allows an unlimited period for U.S. forces to stay in the Philippines.288

However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of
effectivity. Although this term is automatically renewed, the process for terminating the agreement is
30

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.
Page
 Drawing on the reasoning in Lim, we also believe that it could not have been by chance that the VFA
does not include a maximum time limit with respect to the presence of U.S. personnel in the country.
We construe this lack of specificity as a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the "adjustment in detail" stage of the
implementation of the treaty. We interpret the subsequent, unconditional concurrence of the Senate in
the entire text of the VFA as an implicit grant to the President of a margin of appreciation in determining
the duration of the "temporary" presence of U.S. personnel in the country.

Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more permanent" in
nature.289 However, this argument has not taken root by virtue of a simple glance at its provisions on
the effectivity period. EDCA does not grant permanent bases, but rather temporary rotational access to
facilities for efficiency. As Professor Aileen S.P. Baviera notes:

The new EDCA would grant American troops, ships and planes rotational access to facilities of the
Armed Forces of the Philippines – but not permanent bases which are prohibited under the Philippine
Constitution - with the result of reducing response time should an external threat from a common
adversary crystallize.290

EDCA is far from being permanent in nature compared to the practice of states as shown in other
defense cooperation agreements. For example, Article XIV(l) of the U.S.-Romania defense agreement
provides the following:

This Agreement is concluded for an indefinite period and shall enter into force in accordance with
the internal laws of each Party x x x. (emphasis supplied)

Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:

This Agreement has been concluded for an indefinite period of time. It may be terminated by written
notification by either Party and in that event it terminates 2 years after the receipt of the notification.
(emphasis supplied)

Section VIII of US.-Denmark Mutual Support Agreement similarly provides:

8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and B, shall
become effective on the date of the last signature affixed below and shall remain in force until
terminated by the Parties, provided that it may be terminated by either Party upon 180 days written
notice of its intention to do so to the other Party. (emphasis supplied)

On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a longer initial
term:

3. This Agreement shall have an initial term of 25 years and thereafter shall continue in force, but
may be terminated by either Party at any time upon one year's written notice to the other Party through
diplomatic channels. (emphasis supplied)

The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than half of that
is provided in the latter agreement. This means that EDCA merely follows the practice of other states in
not specifying a non-extendible maximum term. This practice, however, does not automatically grant a
badge of permanency to its terms. Article XII(4) of EDCA provides very clearly, in fact, that its effectivity
is for an initial term of 10 years, which is far shorter than the terms of effectivity between the U.S. and
other states. It is simply illogical to conclude that the initial, extendible term of 10 years somehow gives
EDCA provisions a permanent character.

The reasoning behind this interpretation is rooted in the constitutional role of the President who, as
Commander-in-Chief of our armed forces, is the principal strategist of the nation and, as such, duty-
bound to defend our national sovereignty and territorial integrity;291 who, as chief architect of our foreign
relations, is the head policymaker tasked to assess, ensure, and protect our national security and
interests;292 who holds the most comprehensive and most confidential information about foreign
countries293 that may affect how we conduct our external affairs; and who has unrestricted access to
highly classified military intelligence data294 that may threaten the life of the nation. Thus, if after a
geopolitical prognosis of situations affecting the country, a belief is engendered that a much longer
period of military training is needed, the President must be given ample discretion to adopt necessary
measures including the flexibility to set an extended timetable.
31
Page
 Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that the
President may not always be able to candidly and openly discuss the complete situation being faced by
the nation. The Chief Executive's hands must not be unduly tied, especially if the situation calls for
crafting programs and setting timelines for approved activities. These activities may be necessary for
maintaining and developing our capacity to resist an armed attack, ensuring our national sovereignty
and territorial integrity, and securing our national interests. If the Senate decides that the President is in
the best position to define in operational terms the meaning of temporary in relation to the visits,
considered individually or in their totality, the Court must respect that policy decision. If the Senate feels
that there is no need to set a time limit to these visits, neither should we.

Evidently, the fact that the VFA does not provide specificity in regard to the extent of the "temporary"
nature of the visits of U.S. personnel does not suggest that the duration to which the President may
agree is unlimited. Instead, the boundaries of the meaning of the term temporary in Article I of the treaty
must be measured depending on the purpose of each visit or activity.295 That purpose must be
analyzed on a case-by-case basis depending on the factual circumstances surrounding the conclusion
of the implementing agreement. While the validity of the President's actions will be judged under less
stringent standards, the power of this Court to determine whether there was grave abuse of discretion
remains unimpaired.

d. Authorized activities performed by US. contractors within Philippine territory - who were legitimately
permitted to enter the country independent of EDCA - are subject to relevant Philippine statutes and
regulations and must be consistent with the MDT and the VFA

Petitioners also raise296 concerns about the U.S. government's purported practice of hiring private
security contractors in other countries. They claim that these contractors - one of which has already
been operating in Mindanao since 2004 - have been implicated in incidents or scandals in other parts of
the globe involving rendition, torture and other human rights violations. They also assert that these
contractors employ paramilitary forces in other countries where they are operating.

Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only the following
activities:

1. Training; transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of equipment, supplies, and materiel; deployment of
forces and materiel; and such other activities as the Parties may agree297

2. Prepositioning and storage of defense equipment, supplies, and materiel, including delivery,
management, inspection, use, maintenance, and removal of such equipment, supplies and
materiel298

3. Carrying out of matters in accordance with, and to the extent permissible under, U.S. laws,
regulations, and policies299

EDCA requires that all activities within Philippine territory be in accordance with Philippine law. This
means that certain privileges denied to aliens are likewise denied to foreign military contractors.
Relevantly, providing security300 and carrying, owning, and possessing firearms301 are illegal for foreign
civilians.

The laws in place already address issues regarding the regulation of contractors. In the 2015 Foreign
Investment Negative list,302 the Executive Department has already identified corporations that have
equity restrictions in Philippine jurisdiction. Of note is No. 5 on the list - private security agencies that
cannot have any foreign equity by virtue of Section 4 of Republic Act No. 5487; 303 and No. 15, which
regulates contracts for the construction of defense-related structures based on Commonwealth Act No.
541.

Hence, any other entity brought into the Philippines by virtue of EDCA must subscribe to corporate and
civil requirements imposed by the law, depending on the entity's corporate structure and the nature of
its business.

That Philippine laws extraneous to EDCA shall govern the regulation of the activities of U.S. contractors
has been clear even to some of the present members of the Senate.
32

For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the
Page

waters off Manila Bay.304 The Senate Committee on Foreign Relations and the Senate Committee on
 Environment and Natural Resources chairperson claimed environmental and procedural violations by
the contractor.305 The U.S. Navy investigated the contractor and promised stricter guidelines to be
imposed upon its contractors.306 The statement attributed to Commander Ron Steiner of the public
affairs office of the U.S. Navy's 7th Fleet - that U.S. Navy contractors are bound by Philippine laws - is
of particular relevance. The statement acknowledges not just the presence of the contractors, but also
the U.S. position that these contractors are bound by the local laws of their host state. This stance was
echoed by other U.S. Navy representatives.307

This incident simply shows that the Senate was well aware of the presence of U.S. contractors for the
purpose of fulfilling the terms of the VFA. That they are bound by Philippine law is clear to all, even to
the U.S.

As applied to EDCA, even when U.S. contractors are granted access to the Agreed Locations, all their
activities must be consistent with Philippine laws and regulations and pursuant to the MDT and the
VFA.

While we recognize the concerns of petitioners, they do not give the Court enough justification to strike
down EDCA. In Lim v. Executive Secretary, we have already explained that we cannot take judicial
notice of claims aired in news reports, "not because of any issue as to their truth, accuracy, or
impartiality, but for the simple reason that facts must be established in accordance with the rules of
evidence."308 What is more, we cannot move one step ahead and speculate that the alleged illegal
activities of these contractors in other countries would take place in the Philippines with certainty. As
can be seen from the above discussion, making sure that U.S. contractors comply with Philippine laws
is a function of law enforcement. EDCA does not stand in the way of law enforcement.

Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage of the
VFA. As visiting aliens, their entry, presence, and activities are subject to all laws and treaties
applicable within the Philippine territory. They may be refused entry or expelled from the country if they
engage in illegal or undesirable activities. There is nothing that prevents them from being detained in
the country or being subject to the jurisdiction of our courts. Our penal laws, 309 labor laws,310 and
immigrations laws311 apply to them and therefore limit their activities here. Until and unless there is
another law or treaty that specifically deals with their entry and activities, their presence in the country
is subject to unqualified Philippine jurisdiction.

EDCA does not allow the presence of U.S.-owned or -controlled military facilities and bases in
the Philippines

Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military bases through
the "euphemistically" termed "Agreed Locations. "312 Alluding to the definition of this term in Article II(4)
of EDCA, they point out that these locations are actually military bases, as the definition refers to
facilities and areas to which U.S. military forces have access for a variety of purposes. Petitioners claim
that there are several badges of exclusivity in the use of the Agreed Locations by U.S.
forces. First, Article V(2) of EDCA alludes to a "return" of these areas once they are no longer needed
by U.S. forces, indicating that there would be some transfer of use. Second, Article IV(4) ofEDCA talks
about American forces' unimpeded access to the Agreed Locations for all matters relating to the
prepositioning and storage of U.S. military equipment, supplies, and materiel. Third, Article VII of EDCA
authorizes U.S. forces to use public utilities and to operate their own telecommunications system.

a. Preliminary point on badges of exclusivity

As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-

called "badges of exclusivity," despite the presence of contrary provisions within the text of the
agreement itself.

First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the word "return" is
within the context of a lengthy provision. The provision as a whole reads as follows:

The United States shall return to the Philippines any Agreed Locations, or any portion thereof, including
non-relocatable structures and assemblies constructed, modified, or improved by the United States,
once no longer required by United States forces for activities under this Agreement. The Parties or the
Designated Authorities shall consult regarding the terms of return of any Agreed Locations, including
possible compensation for improvements or construction.
33

The context of use is "required by United States forces for activities under this Agreement." Therefore,
Page

the return of an Agreed Location would be within the parameters of an activity that the Mutual Defense
Board (MDB) and the Security Engagement Board (SEB) would authorize. Thus, possession by the
 U.S. prior to its return of the Agreed Location would be based on the authority given to it by a joint body
co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with representatives from the
Philippines' Department of National Defense and Department of Foreign Affairs sitting as
members."313 The terms shall be negotiated by both the Philippines and the U.S., or through their
Designated Authorities. This provision, seen as a whole, contradicts petitioners' interpretation of the
return as a "badge of exclusivity." In fact, it shows the cooperation and partnership aspect of EDCA in
full bloom.

Second, the term "unimpeded access" must likewise be viewed from a contextual perspective. Article
IV(4) states that U.S. forces and U.S. contractors shall have "unimpeded access to Agreed Locations
for all matters relating to the prepositioning and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use, maintenance, and removal of such equipment,
supplies and materiel."

At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to bring in
these equipment, supplies, and materiel through the MDB and SEB security mechanism. These items
are owned by the U.S.,314 are exclusively for the use of the U.S.315 and, after going through the joint
consent mechanisms of the MDB and the SEB, are within the control of the U.S.316 More importantly,
before these items are considered prepositioned, they must have gone through the process of prior
authorization by the MDB and the SEB and given proper notification to the AFP.317

Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the ownership,
use, and control of the U.S. over its own equipment, supplies, and materiel and must have first been
allowed by the joint mechanisms in play between the two states since the time of the MDT and the
VFA. It is not the use of the Agreed Locations that is exclusive per se; it is mere access to items in
order to exercise the rights of ownership granted by virtue of the Philippine Civil Code. 318

As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their own
telecommunications system, it will be met and answered in part D, infra.

Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a one-to-one
correspondence with the provisions of the 1947 MBA. They assert that both agreements (a) allow
similar activities within the area; (b) provide for the same "species of ownership" over facilities; and (c)
grant operational control over the entire area. Finally, they argue320 that EDCA is in fact an
implementation of the new defense policy of the U.S. According to them, this policy was not what was
originally intended either by the MDT or by the VFA.

On these points, the Court is not persuaded.

The similar activities cited by petitioners321 simply show that under the MBA, the U.S. had the right to
construct, operate, maintain, utilize, occupy, garrison, and control the bases. The so-called parallel
provisions of EDCA allow only operational control over the Agreed Locations specifically for
construction activities. They do not allow the overarching power to operate, maintain, utilize, occupy,
garrison, and control a base with full discretion. EDCA in fact limits the rights of the U.S. in respect of
every activity, including construction, by giving the MDB and the SEB the power to determine the
details of all activities such as, but not limited to, operation, maintenance, utility, occupancy,
garrisoning, and control.322

The "species of ownership" on the other hand, is distinguished by the nature of the property. For
immovable property constructed or developed by the U.S., EDCA expresses that ownership will
automatically be vested to the Philippines.323 On the other hand, for movable properties brought into the
Philippines by the U.S., EDCA provides that ownership is retained by the latter. In contrast, the MBA
dictates that the U.S. retains ownership over immovable and movable properties.

To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in the
Philippines. The Civil Code's provisions on ownership, as applied, grant the owner of a movable
property full rights over that property, even if located in another person's property. 324

The parallelism, however, ends when the situation involves facilities that can be considered immovable.
Under the MBA, the U.S. retains ownership if it paid for the facility.325 Under EDCA, an immovable is
owned by the Philippines, even if built completely on the back of U.S. funding.326 This is consistent with
the constitutional prohibition on foreign land ownership.327
34

Despite the apparent similarity, the ownership of property is but a part of a larger whole that must be
Page

considered before the constitutional restriction is violated. Thus, petitioners' points on operational
 control will be given more attention in the discussion below. The arguments on policy are, however,
outside the scope of judicial review and will not be discussed

Moreover, a direct comparison of the MBA and EDCA will result in several important distinctions that
would allay suspicion that EDCA is but a disguised version of the MBA.

b. There are substantial matters that the US. cannot do under EDCA, but which it was authorized to do
under the 1947 MBA

The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible under
EDCA for a number of important reasons.

First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine territory
occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any such right over any
part of the Philippines in which its forces or equipment may be found. Below is a comparative table
between the old treaty and EDCA:

1947 MBA/ 1946 Treaty of General EDCA

Relations
1947 MBA, Art. I(1): EDCA, preamble:

The Government of the Republic of Affirming that the Parties share an

the Philippines (hereinafter referred to as
the Philippines) grants to the Government
of the United States of America (hereinafter
referred to as the United States) the right to
retain the use of the bases in the
Philippines listed in Annex A attached
hereto.
1947 MBA, Art. XVII(2):
All buildings and structures which
are erected by the United States in the
bases shall be the property of the United
States and may be removed by it before
the expiration of this Agreement or the
earlier relinquishment of the base on which
the structures are situated. There shall be
no obligation on the part of the Philippines
or of the United States to rebuild or repair
any destruction or damage inflicted from
any cause whatsoever on any of the said
buildings or structures owned or used by the
United States in the bases. x x x x.
1946 Treaty of Gen. Relations, Art. I:
The United States of America agrees to
withdraw and surrender, and does hereby
withdraw and surrender, all rights of
possession, supervision, jurisdiction,
control or sovereignty existing and
exercised by the United States of
America in and over the territory and the
people of the Philippine Islands, except
the use of such bases, necessary
appurtenances to such bases, and the
rights incident thereto, as the United
States of America, by agreement with the
Republic of the Philippines may deem
necessary to retain for the mutual protection
35
understanding for the United States not to
establish a permanent military presence
or base in the territory of the Philippines;
xxxx
Recognizing that all United States
access to and use of facilities and areas will
be at the invitation of the Philippines and
with full respect for the Philippine
Constitution and Philippine laws;
xxxx
EDCA, Art. II(4):
"Agreed Locations" means facilities and
areas that are provided by the
Government of the Philippines through
the AFP and that United States forces,
United States contractors, and others as
mutually agreed, shall have the right to
access and use pursuant to this Agreement.
Such Agreed Locations may be listed in an
annex to be appended to this Agreement,
and may be further described in
implementing arrangements.
EDCA, Art. V:
1. The Philippines shall retain ownership
of and title to Agreed Locations.
xxxx
4. All buildings, non-relocatable
structures, and assemblies affixed to the
land in the Agreed Locations, including
ones altered or improved by United States

forces, remain the property of the

of the Republic of the Philippines and of the
Philippines. Permanent buildings
Page

United States of America. x x x.

constructed by United States forces become
 the property of the Philippines, once
constructed, but shall be used by United
States forces until no longer required by
United States forces.

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

1947 MBA/ 1946 Treaty of General EDCA

Relations
1947 MBA, Art.I(3): EDCA, preamble:

The Philippines agree to enter into
negotiations with the United States at the
latter's request, to permit the United
States to expand such bases, to exchange
such bases for other bases, to acquire
additional bases, or relinquish rights to
bases, as any of such exigencies may be
required by military necessity.
1946 Treaty of Gen. Relations, Art. I:
The United States of America agrees to
withdraw and surrender, and does hereby
withdraw and surrender, all rights of
possession, supervision, jurisdiction,
control or sovereignty existing and
exercised by the United States of
America in and over the territory and the
people of the Philippine Islands, except
the use of such bases, necessary
appurtenances to such bases, and the
rights incident thereto, as the United
States of America, by agreement with the
Republic of the Philippines may deem
necessary to retain for the mutual
protection of the Republic of the Philippines
and of the United States of America. x x x.
Recognizing that all United States
access to and use of facilities and areas will
be at the invitation of the Philippines and
with full respect for the Philippine
Constitution and Philippine laws;
xxxx
EDCA. Art. II(4):
"Agreed Locations" means facilities and
areas that are provided by the
Government of the Philippines through
the AFP and that United States forces,
United States contractors, and others as
mutually agreed, shall have the right to
access and use pursuant to this Agreement.
Such Agreed Locations may be listed in an
annex to be appended to this Agreement,
and may be further described in
implementing arrangements.

Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed Locations. On
the other hand, given that the U.S. had complete control over its military bases under the 1947 MBA,
the treaty did not provide for any express recognition of the right of access of Philippine authorities.
Without that provision and in light of the retention of U.S. sovereignty over the old military bases, the
U.S. could effectively prevent Philippine authorities from entering those bases.

1947 MBA EDCA

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

The Philippine Designated Authority and

its authorized representative shall have
access to the entire area of the Agreed
Locations. Such access shall be provided
promptly consistent with operational safety
and security requirements in accordance
36

with agreed procedures developed by the

Parties.
Page
 Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the
establishment, use, operation, defense, and control of military bases, including the limits of territorial
waters and air space adjacent to or in the vicinity of those bases. The only standard used in
determining the extent of its control was military necessity. On the other hand, there is no such grant of
power or authority under EDCA. It merely allows the U.S. to exercise operational control over the
construction of Philippine-owned structures and facilities:

1947 MBA EDCA

1947 MBA, Art.I(2): EDCA, Art. III(4):

The Philippines agrees to permit the
United States, upon notice to the
Philippines, to use such of those
bases listed in Annex B as the United
States determines to be required by
military necessity.
1947 MBA, Art. III(1):
It is mutually agreed that the United
States shall have the rights, power and
authority within the bases which
are necessary for the establishment, use, requirements and construction standards of
operation and defense thereof or
appropriate for the control thereof and all behalf of United States forces should be
the rights, power and authority within the
limits of territorial waters and air space
adjacent to, or in the vicinity of, the bases
which are necessary to provide access to
them, or appropriate for their control.
The Philippines hereby grants to the
United States, through bilateral security
mechanisms, such as the MDB and
SEB, operational control of Agreed
Locations for construction
activities and authority to undertake such
activities on, and make alterations and
improvements to, Agreed Locations. United
States forces shall consult on issues
regarding such construction, alterations,
and improvements based on the Parties'
shared intent that the technical
any such projects undertaken by or on
consistent with the requirements and
standards of both Parties.

Fifth, the U.S. under the bases agreement was given the authority to use Philippine territory for
additional staging areas, bombing and gunnery ranges. No such right is given under EDCA, as seen
below:

1947 MBA EDCA

1947 MBA, Art. VI: EDCA, Art. III(1):

The United States shall, subject to previous
agreement with the Philippines, have
the right to use land and coastal sea
areas of appropriate size and location for
periodic maneuvers, for additional staging
areas, bombing and gunnery ranges, and
for such intermediate airfields as may be
required for safe and efficient air operations.
Operations in such areas shall be carried on
with due regard and safeguards for the
public safety.
1947 MBA, Art.I(2):
The Philippines agrees to permit the
United States, upon notice to the
Philippines, to use such of those
bases listed in Annex B as the United
States determines to be required by
military necessity.
With consideration of the views of
the Parties,
the Philippines hereby authorizes and
agrees that United States forces, United
States contractors, and vehicles, vessels,
and aircraft operated by or for United States
forces may conduct the following activities
with respect to Agreed Locations: training;
transit; support and related activities;
refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles,
vessels, and aircraft; temporary
accommodation of personnel;
communications; prepositioning of
equipment, supplies, and materiel;
deploying forces and materiel; and such
other activities as the Parties may agree.

Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit the
37

movement and operation of all types of vehicles within the vicinity of the bases. The U.S. does not have
Page

any right, power, or authority to do so under EDCA.

 1947 MBA EDCA
1947 MBA, Art. 111(2)(c) No equivalent provision.

Such rights, power and authority shall

include, inter alia, the right, power and
authority: x x x x to control (including the
right to prohibit) in so far as may be
required for the efficient operation and
safety of the bases, and within the limits of
military necessity, anchorages, moorings,
landings, takeoffs, movements and
operation of ships and water-borne craft,
aircraft and other vehicles on water, in
the air or on land comprising

Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities (including
roads, ports, and airfields). On the other hand, the old treaty gave the U.S. the right to improve and
deepen the harbors, channels, entrances, and anchorages; and to construct or maintain necessary
roads and bridges that would afford it access to its military bases.

1947 MBA EDCA

1947 MBA, Art. III(2)(b): EDCA, Art. III(2):

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to improve and deepen
the harbors, channels, entrances and
anchorages, and to construct or
maintain necessary roads and bridges
affording access to the bases.
When requested, the Designated Authority
of the Philippines shall assist in facilitating
transit or temporary access by United
States forces to public land and facilities
(including roads, ports, and airfields),
including those owned or controlled by local
governments, and to other land and facilities
(including roads, ports, and airfields).

Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public utilities,
services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges, viaducts, canals,
lakes, rivers, and streams in the Philippines in the same manner that Philippine military forces enjoyed
that right. No such arrangement appears in EDCA. In fact, it merely extends to U.S. forces temporary
access to public land and facilities when requested:

1947 MBA EDCA

1947 MBA, Art. VII: EDCA, Art. III(2):

It is mutually agreed that the United States
may employ and use for United States
military forces any and all public utilities,
other services and facilities, airfields,
ports, harbors, roads, highways, railroads,
bridges, viaducts, canals, lakes, rivers and
streams in the Philippines under
conditions no less favorable than
those that may be applicable from time to
time to the military forces of the
Philippines.
When requested, the Designated Authority
of the Philippines shall assist in facilitating
transit or temporary access by United
States forces to public land and facilities
(including roads, ports, and airfields),
including those owned or controlled by local
governments, and to other land and facilities
(including roads, ports, and airfields).

Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install,
maintain, and employ any type of facility, weapon, substance, device, vessel or vehicle, or system
unlike in the old treaty. EDCA merely grants the U.S., through bilateral security mechanisms, the
authority to undertake construction, alteration, or improvements on the Philippine-owned Agreed
Locations.
38

1947 MBA EDCA

Page
 1947 MBA, Art. III(2)(e): EDCA, Art. III(4):

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to construct, install,
maintain, and employ on any base any
type of facilities, weapons, substance,
device, vessel or vehicle on or under the
ground, in the air or on or under the water
that may be requisite or appropriate,
including meteorological systems, aerial and
water navigation lights, radio and radar
apparatus and electronic devices, of any
desired power, type of emission and
frequency.
The Philippines hereby grants to the United
States, through bilateral security
mechanisms, such as the MDB and SEB,
operational control of Agreed Locations for
construction activities and authority to
undertake such activities on, and make
alterations and improvements to, Agreed
Locations. United States forces shall
consult on issues regarding such
construction, alterations, and improvements
based on the Parties' shared intent that the
technical requirements and construction
standards of any such projects undertaken
by or on behalf of United States forces
should be consistent with the requirements
and standards of both Parties.

Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation proceedings, real
property belonging to any private person. The old military bases agreement gave this right to the U.S.
as seen below:

1947 MBA EDCA

1947 MBA, Art. XXII(l): No equivalent provision.

Whenever it is necessary to acquire by

condemnation or expropriation
proceedings real property belonging to
any private persons, associations or
corporations located in bases named in
Annex A and Annex B in order to carry out
the purposes of this Agreement, the
Philippines will institute and prosecute such
condemnation or expropriation proceedings
in accordance with the laws of the
Philippines. The United States agrees to
reimburse the Philippines for all the
reasonable expenses, damages and costs
therebv incurred, including the value of the
property as determined by the Court. In
addition, subject to the mutual agreement of
the two Governments, the United States will
reimburse the Philippines for the reasonable
costs of transportation and removal of any
occupants displaced or ejected by reason of
the condemnation or expropriation.

Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine nationals
who are under its employ, together with their families, in connection with the construction, maintenance,
or operation of the bases. EDCA strictly adheres to the limits under the VFA.

1947 MBA EDCA

1947 MBA, Art. XI(l): EDCA, Art. II:

It is mutually agreed that the United States 1. "United States personnel" means
shall have the right to bring into the United States military and civilian
Philippines members of the United States personnel temporarily in the territory of the
39

military forces and the United States Philippines in connection with activities
nationals employed by or under a
Page

contract with the United States together

 with their families, and technical
personnel of other nationalities (not being
persons excluded by the laws of the
Philippines) in connection with the
construction, maintenance, or operation of
the bases. The United States shall make
suitable arrangements so that such persons
may be readily identified and their status
established when necessary by the
Philippine authorities. Such persons, other
than members of the United States armed
forces in uniform, shall present their travel
documents to the appropriate Philippine
authorities for visas, it being understood
that no objection will be made to their
travel to the Philippines as non-
immigrants.
approved by the Philippines, as those
terms are defined in the VFA.
x xx x
3. "United States contractors" means
companies and firms, and their employees,
under contract or subcontract to or on
behalf of the United States Department of
Defense. United States contractors are not
included as part of the definition of United
States personnel in this
Agreement, including within the context
of the VFA.

Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense committed by any
person within the Agreed Locations, unlike in the former military bases:

1947 MBA EDCA

1947 MBA, Art. XIII(l)(a): No equivalent provision.

The Philippines consents that the United

States shall have the right to exercise

jurisdiction over the following offenses:
(a) Any offense committed by any
person within any base except where the
offender and offended parties are both
Philippine citizens (not members of the
armed forces of the United States on active
duty) or the offense is against the security of
the Philippines.

Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX) facilities, which is
free of customs duties and taxes, unlike what the expired MBA expressly allowed. Parenthetically, the
PX store has become the cultural icon of U.S. military presence in the country.

1947 MBA EDCA

1947 MBA, Art. XVIII(l): No equivalent provision.

It is mutually agreed that the United States

shall have the right to establish on bases,

free of all licenses; fees; sales, excise or
other taxes, or imposts; Government
agencies, including concessions, such
as sales commissaries and post
exchanges; messes and social clubs, for
the exclusive use of the United States
military forces and authorized civilian
personnel and their families. The
merchandise or services sold or dispensed
by such agencies shall be free of all taxes,
duties and inspection by the Philippine
authorities. Administrative measures shall
be taken by the appropriate authorities of
40

the United States to prevent the resale of

goods which are sold under the provisions
Page

of this Article to persons not entitled to buy

 goods at such agencies and, generally, to
prevent abuse of the privileges granted
under this Article. There shall be
cooperation between such authorities and
the Philippines to this end.

In sum, EDCA is a far cry from a basing agreement as was understood by the people at the time that
the 1987 Constitution was adopted.

Nevertheless, a comprehensive review of what the Constitution means by "foreign military bases" and
"facilities" is required before EDCA can be deemed to have passed judicial scrutiny.

c. The meaning of military facilities and bases

An appreciation of what a military base is, as understood by the Filipino people in 1987, would be vital
in determining whether EDCA breached the constitutional restriction.

Prior to the drafting of the 1987 Constitution, the last definition of "military base" was provided under
Presidential Decree No. (PD) 1227.328 Unlawful entry into a military base is punishable under the
decree as supported by Article 281 of the Revised Penal Code, which itself prohibits the act of
trespass.

Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this decree means any
military, air, naval, or coast guard reservation, base, fort, camp, arsenal, yard, station, or installation in
the Philippines."

Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines before the 1986
Constitutional Commission, listed the areas that he considered as military bases:

1,000 hectares Camp O'Donnel

20,000 hectares Crow Valley Weapon's Range

55,000 hectares Clark Air Base

150 hectares Wallace Air Station

400 hectares John Hay Air Station

15,000 hectares Subic Naval Base

1,000 hectares San Miguel Naval Communication

750 hectares Radio Transmitter in Capas, Tarlac

900 hectares Radio Bigot Annex at Bamban, Tarlac329

The Bases Conversion and Development Act of 1992 described its coverage in its Declaration of
Policies:

Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to accelerate the
sound and balanced conversion into alternative productive uses of the Clark and Subic military
reservations and their extensions (John Hay Station, Wallace Air Station, O'Donnell Transmitter
Station, San Miguel Naval Communications Station and Capas Relay Station), to raise funds by the
sale of portions of Metro Manila military camps, and to apply said funds as provided herein for the
development and conversion to productive civilian use of the lands covered under the 194 7 Military
Bases Agreement between the Philippines and the United States of America, as amended.330

The result of the debates and subsequent voting is Section 25, Article XVIII of the Constitution, which
specifically restricts, among others, foreign military facilities or bases. At the time of its crafting of the
Constitution, the 1986 Constitutional Commission had a clear idea of what exactly it was restricting.
41

While the term "facilities and bases" was left undefined, its point of reference was clearly those areas
covered by the 1947 MBA as amended.
Page
 Notably, nearly 30 years have passed since then, and the ever-evolving world of military technology
and geopolitics has surpassed the understanding of the Philippine people in 1986. The last direct
military action of the U.S. in the region was the use of Subic base as the staging ground for Desert
Shield and Desert Storm during the Gulf War.331 In 1991, the Philippine Senate rejected the successor
treaty of the 1947 MBA that would have allowed the continuation of U.S. bases in the Philippines.

Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve likewise, taking into
consideration the subsisting agreements between both parties, the rejection of the 1991 proposal, and
a concrete understanding of what was constitutionally restricted. This trend birthed the VFA which, as
discussed, has already been upheld by this Court.

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

By definition, Agreed Locations are

facilities and areas that are provided by the Government of the Philippines through the AFP and that
United States forces, United States contractors, and others as mutually agreed, shall have the right to
access and use pursuant to this Agreement. Such Agreed Locations may be listed in an annex to be
appended to this Agreement, and may be further described in implementing arrangements. 332

Preliminarily, respondent already claims that the proviso that the Philippines shall retain ownership of
and title to the Agreed Locations means that EDCA is "consistent with Article II of the VFA which
recognizes Philippine sovereignty and jurisdiction over locations within Philippine territory.333

By this interpretation, respondent acknowledges that the contention of petitioners springs from an
understanding that the Agreed Locations merely circumvent the constitutional restrictions. Framed
differently, the bone of contention is whether the Agreed Locations are, from a legal perspective,
foreign military facilities or bases. This legal framework triggers Section 25, Article XVIII, and makes
Senate concurrence a sine qua non.

Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines to
"conduct the following activities: "training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment, supplies and materiel;
deploying forces and materiel; and such other activities as the Parties may agree."

This creation of EDCA must then be tested against a proper interpretation of the Section 25 restriction.

d. Reasons for the constitutional requirements and legal standards for constitutionally compatible
military bases and facilities

Section 25 does not define what is meant by a "foreign military facility or base." While it specifically
alludes to U.S. military facilities and bases that existed during the framing of the Constitution, the
provision was clearly meant to apply to those bases existing at the time and to any future facility or
base. The basis for the restriction must first be deduced from the spirit of the law, in order to set a
standard for the application of its text, given the particular historical events preceding the agreement.

Once more, we must look to the 1986 Constitutional Commissioners to glean, from their collective
wisdom, the intent of Section 25. Their speeches are rich with history and wisdom and present a clear
picture of what they considered in the crafting the provision.

SPEECH OF COMMISSIONER REGALADO334

xxxx

We have been regaled here by those who favor the adoption of the anti-bases provisions with what
purports to be an objective presentation of the historical background of the military bases in the
Philippines. Care appears, however, to have been taken to underscore the inequity in their inception
as well as their implementation, as to seriously reflect on the supposed objectivity of the report.
Pronouncements of military and civilian officials shortly after World War II are quoted in support of the
proposition on neutrality; regrettably, the implication is that the same remains valid today, as if the
world and international activity stood still for the last 40 years.
42

We have been given inspired lectures on the effect of the presence of the military bases on our
Page

sovereignty - whether in its legal or political sense is not clear - and the theory that any country
 with foreign bases in its territory cannot claim to be fully sovereign or completely independent. I
was not aware that the concepts of sovereignty and independence have now assumed the totality
principle, such that a willing assumption of some delimitations in the exercise of some aspects thereof
would put that State in a lower bracket of nationhood.

xxxx

We have been receiving a continuous influx of materials on the pros and cons on the advisability of
having military bases within our shores. Most of us who, only about three months ago, were just mulling
the prospects of these varying contentions are now expected, like armchair generals, to decide not only
on the geopolitical aspects and contingent implications of the military bases but also on their political,
social, economic and cultural impact on our national life. We are asked to answer a plethora of
questions, such as: 1) whether the bases are magnets of nuclear attack or are deterrents to such
attack; 2) whether an alliance or mutual defense treaty is a derogation of our national sovereignty; 3)
whether criticism of us by Russia, Vietnam and North Korea is outweighed by the support for us of the
ASEAN countries, the United States, South Korea, Taiwan, Australia and New Zealand; and 4) whether
the social, moral and legal problems spawned by the military bases and their operations can be
compensated by the economic benefits outlined in papers which have been furnished recently to all of
us.335

xxxx

Of course, one side of persuasion has submitted categorical, unequivocal and forceful assertions of
their positions. They are entitled to the luxury of the absolutes. We are urged now to adopt the
proposed declaration as a "golden," "unique" and "last" opportunity for Filipinos to assert their
sovereign rights. Unfortunately, I have never been enchanted by superlatives, much less for the
applause of the moment or the ovation of the hour. Nor do I look forward to any glorious summer after a
winter of political discontent. Hence, if I may join Commissioner Laurel, I also invoke a caveat not only
against the tyranny of labels but also the tyranny of slogans.336

xxxx

SPEECH OF COMMISSIONER SUAREZ337

MR. SUAREZ: Thank you, Madam President.

I am quite satisfied that the crucial issues involved in the resolution of the problem of the removal of
foreign bases from the Philippines have been adequately treated by previous speakers. Let me,
therefore, just recapitulate the arguments adduced in favor of a foreign bases-free Philippines:

1. That every nation should be free to shape its own destiny without outside interference;

2. That no lasting peace and no true sovereignty would ever be achieved so long as there
are foreign military forces in our country;

3. That the presence of foreign military bases deprives us of the very substance of national
sovereignty and this is a constant source of national embarrassment and an insult to our
national dignity and selfrespect as a nation;

4. That these foreign military bases unnecessarily expose our country to devastating
nuclear attacks;

5. That these foreign military bases create social problems and are designed to perpetuate the
strangle-hold of United States interests in our national economy and development;

6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our
country of jurisdiction over civil and criminal offenses committed within our own national
territory and against Filipinos;

7. That the bases agreements are colonial impositions and dictations upon our helpless
country; and
43

8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null
and void ab initio, especially because they did not count the sovereign consent and will of the
Page

Filipino people.338
 xxxx

In the real sense, Madam President, if we in the Commission could accommodate the provisions I have
cited, what is our objection to include in our Constitution a matter as priceless as the nationalist values
we cherish? A matter of the gravest concern for the safety and survival of this nation indeed
deserves a place in our Constitution.

xxxx

x x x Why should we bargain away our dignity and our self-respect as a nation and the future of
generations to come with thirty pieces of silver?339

SPEECH OF COMMISSIONER BENNAGEN340

xxxx

The underlying principle of military bases and nuclear weapons wherever they are found and whoever
owns them is that those are for killing people or for terrorizing humanity. This objective by itself at
any point in history is morally repugnant. This alone is reason enough for us to constitutionalize the ban
on foreign military bases and on nuclear weapons.341

SPEECH OF COMMISSIONER BACANI342

xxxx

x x x Hence, the remedy to prostitution does not seem to be primarily to remove the
bases because even if the bases are removed, the girls mired in poverty will look for their clientele
elsewhere. The remedy to the problem of prostitution lies primarily elsewhere - in an alert and
concerned citizenry, a healthy economy and a sound education in values.343

SPEECH OF COMMISSIONER JAMIR344

xxxx

One of the reasons advanced against the maintenance of foreign military bases here is that they
impair portions of our sovereignty. While I agree that our country's sovereignty should not be
impaired, I also hold the view that there are times when it is necessary to do so according to the
imperatives of national interest. There are precedents to this effect. Thus, during World War II, England
leased its bases in the West Indies and in Bermuda for 99 years to the United States for its use as
naval and air bases. It was done in consideration of 50 overaged destroyers which the United States
gave to England for its use in the Battle of the Atlantic.

A few years ago, England gave the Island of Diego Garcia to the United States for the latter's use as a
naval base in the Indian Ocean. About the same time, the United States obtained bases in Spain, Egypt
and Israel. In doing so, these countries, in effect, contributed to the launching of a preventive defense
posture against possible trouble in the Middle East and in the Indian Ocean for their own protection.345

SPEECH OF COMMISSIONER TINGSON346

xxxx

In the case of the Philippines and the other Southeast Asian nations, the presence of American troops
in the country is a projection of America's security interest. Enrile said that nonetheless, they also
serve, although in an incidental and secondary way, the security interest of the Republic of the
Philippines and the region. Yes, of course, Mr. Enrile also echoes the sentiments of most of us in this
Commission, namely: It is ideal for us as an independent and sovereign nation to ultimately
abrogate the RP-US military treaty and, at the right time, build our own air and naval might.347

xxxx

Allow me to say in summation that I am for the retention of American military bases in the
Philippines provided that such an extension from one period to another shall be concluded
44

upon concurrence of the parties, and such extension shall be based on justice, the historical
amity of the people of the Philippines and the United States and their common defense
Page

interest.348
 SPEECH OF COMMISSIONER ALONTO349

xxxx

Madam President, sometime ago after this Commission started with this task of framing a constitution, I
read a statement of President Aquino to the effect that she is for the removal of the U.S. military bases
in this country but that the removal of the U.S. military bases should not be done just to give way to
other foreign bases. Today, there are two world superpowers, both vying to control any and all
countries which have importance to their strategy for world domination. The Philippines is one such
country.

Madam President, I submit that I am one of those ready to completely remove any vestiges of the
days of enslavement, but not prepared to erase them if to do so would merely leave a vacuum to be
occupied by a far worse type.350

SPEECH OF COMMISSIONER GASCON351

xxxx

Let us consider the situation of peace in our world today. Consider our brethren in the Middle East, in
Indo-China, Central America, in South Africa - there has been escalation of war in some of these areas
because of foreign intervention which views these conflicts through the narrow prism of the East-West
conflict. The United States bases have been used as springboards for intervention in some of
these conflicts. We should not allow ourselves to be party to the warlike mentality of these
foreign interventionists. We must always be on the side of peace – this means that we should not
always rely on military solution.352

xxxx

x x x The United States bases, therefore, are springboards for intervention in our own internal
affairs and in the affairs of other nations in this region.

xxxx

Thus, I firmly believe that a self-respecting nation should safeguard its fundamental freedoms which
should logically be declared in black and white in our fundamental law of the land - the Constitution. Let
us express our desire for national sovereignty so we may be able to achieve national self-
determination. Let us express our desire for neutrality so that we may be able to follow active
nonaligned independent foreign policies. Let us express our desire for peace and a nuclear-free zone
so we may be able to pursue a healthy and tranquil existence, to have peace that is autonomous and
not imposed. 353

xxxx

SPEECH OF COMMISSIONER TADEO354

Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa magbubukid, ang
kahulugan nito ay pagkaalipin. Para sa magbubukid, ang pananatili ng U.S. military bases ay tinik
sa dibdib ng sambayanang Pilipinong patuloy na nakabaon. Para sa sambayanang magbubukid,
ang ibig sabihin ng U.S. military bases ay batong pabigat na patuloy na pinapasan ng
sambayanang Pilipino. Para sa sambayanang magbubukid, ang pananatili ng U.S. military
bases ay isang nagdudumilat na katotohanan ng patuloy na paggahasa ng imperyalistang
Estados Unidos sa ating Inang Bayan - economically, politically and culturally. Para sa
sambayanang magbubukid ang U.S. military bases ay kasingkahulugan ng nuclear weapon - ang
kahulugan ay magneto ng isang nuclear war. Para sa sambayanang magbubukid, ang kahulugan
ng U.S. military bases ay isang salot.355

SPEECH OF COMMISSIONER QUESADA356

xxxx

The drift in the voting on issues related to freeing ourselves from the instruments of domination
45

and subservience has clearly been defined these past weeks.

Page

xxxx
 So for the record, Mr. Presiding Officer, I would like to declare my support for the committee's position
to enshrine in the Constitution a fundamental principle forbidding foreign military bases, troops or
facilities in any part of the Philippine territory as a clear and concrete manifestation of our inherent
right to national self-determination, independence and sovereignty.

Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to the social cost
of allowing foreign countries to maintain military bases in our country. Previous speakers have dwelt on
this subject, either to highlight its importance in relation to the other issues or to gloss over its
significance and !llake this a part of future negotiations.357

xxxx

Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions and is the
response of the Filipino people against this condition and other conditions that have already been
clearly and emphatically discussed in past deliberations. The deletion, therefore, of Section 3 in the
Constitution we are drafting will have the following implications:

First, the failure of the Constitutional Commission to decisively respond to the continuing violation of
our territorial integrity via the military bases agreement which permits the retention of U.S.
facilities within the Philippine soil over which our authorities have no exclusive jurisdiction
contrary to the accepted definition of the exercise of sovereignty.

Second, consent by this forum, this Constitutional Commission, to an exception in the application of
a provision in the Bill of Rights that we have just drafted regarding equal application of the laws of
the land to all inhabitants, permanent or otherwise, within its territorial boundaries.

Third, the continued exercise by the United States of extraterritoriality despite the condemnations
of such practice by the world community of nations in the light of overwhelming international approval of
eradicating all vestiges of colonialism.358

xxxx

Sixth, the deification of a new concept called pragmatic sovereignty, in the hope that such can be
wielded to force the United States government to concede to better terms and conditions concerning
the military bases agreement, including the transfer of complete control to the Philippine
government of the U.S. facilities, while in the meantime we have to suffer all existing indignities and
disrespect towards our rights as a sovereign nation.

xxxx

Eighth, the utter failure of this forum to view the issue of foreign military bases as essentially a
question of sovereignty which does not require in-depth studies or analyses and which this forum
has, as a constituent assembly drafting a constitution, the expertise and capacity to decide on except
that it lacks the political will that brought it to existence and now engages in an elaborate scheme of
buck-passing.

xxxx

Without any doubt we can establish a new social order in our country, if we reclaim, restore, uphold and
defend our national sovereignty. National sovereignty is what the military bases issue is all
about. It is only the sovereign people exercising their national sovereignty who can design an
independent course and take full control of their national destiny.359

SPEECH OF COMMISSIONER P ADILLA360

xxxx

Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3 and 4 on
neutrality, nuclear and bases-free country, some views stress sovereignty of the Republic and even
invoke survival of the Filipino nation and people.361

REBUTTAL OF COMMISSIONER NOLLEDO362

46

xxxx
Page
 The anachronistic and ephemeral arguments against the provisions of the committee report to
dismantle the American bases after 1991 only show the urgent need to free our country from the
entangling alliance with any power bloc.363

xxxx

xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that the so-called RP-
US Bases Agreement will expire in 1991, that it infringes on our sovereignty and jurisdiction as well
as national dignity and honor, that it goes against the UN policy of disarmament and that it
constitutes unjust intervention in our internal affairs.364 (Emphases Supplied)

The Constitutional Commission eventually agreed to allow foreign military bases, troops, or facilities,
subject to the provisions of Section 25. It is thus important to read its discussions carefully. From these
discussions, we can deduce three legal standards that were articulated by the Constitutional
Commission Members. These are characteristics of any agreement that the country, and by extension
this Court, must ensure are observed. We can thereby determine whether a military base or facility in
the Philippines, which houses or is accessed by foreign military troops, is foreign or remains a
Philippine military base or facility. The legal standards we find applicable are: independence from
foreign control, sovereignty and applicable law, and national security and territorial integrity.

i. First standard: independence from foreign control

Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's drafting was
aimed at asserting Philippine independence from the U.S., as well as control over our country's territory
and military.

Under the Civil Code, there are several aspects of control exercised over property.

Property is classified as private or public.365 It is public if "intended for public use, such as roads,
canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and
others of similar character[,]" or "[t]hose which belong to the State, without being for public use, and are
intended for some public service or for the development of the national wealth. "366

Quite clearly, the Agreed Locations are contained within a property for public use, be it within a
government military camp or property that belongs to the Philippines.1avvphi1

Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil Code
provides that "[t]he owner has the right to enjoy and dispose of a thing, without other limitations than
those established by law." Moreover, the owner "has also a right of action against the holder and
possessor of the thing in order to recover it."

Philippine civil law therefore accords very strong rights to the owner of property, even against those
who hold the property. Possession, after all, merely raises a disputable presumption of ownership,
which can be contested through normal judicial processes.367

In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the
Philippine govemment.368 What U.S. personnel have a right to, pending mutual agreement, is access to
and use of these locations.369

The right of the owner of the property to allow access and use is consistent with the Civil Code, since
the owner may dispose of the property in whatever way deemed fit, subject to the limits of the law. So
long as the right of ownership itself is not transferred, then whatever rights are transmitted by
agreement does not completely divest the owner of the rights over the property, but may only limit them
in accordance with law.

Hence, even control over the property is something that an owner may transmit freely. This act does
not translate into the full transfer of ownership, but only of certain rights. In Roman Catholic Apostolic
Administrator of Davao, Inc. v. Land Registration Commission, we stated that the constitutional
proscription on property ownership is not violated despite the foreign national's control over the
property.370

EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access.
47

Under its pertinent provisions, it is the Designated Authority of the Philippines that shall, when
requested, assist in facilitating transit or access to public land and facilities.371 The activities carried out
Page

within these locations are subject to agreement as authorized by the Philippine govemment. 372 Granting
 the U.S. operational control over these locations is likewise subject to EDCA' s security mechanisms,
which are bilateral procedures involving Philippine consent and cooperation.373 Finally, the Philippine
Designated Authority or a duly designated representative is given access to the Agreed Locations. 374

To our mind, these provisions do not raise the spectre of U.S. control, which was so feared by the
Constitutional Commission. In fact, they seem to have been the product of deliberate negotiation from
the point of view of the Philippine government, which balanced constitutional restrictions on foreign
military bases and facilities against the security needs of the country. In the 1947 MBA, the U.S. forces
had "the right, power and authority x x x to construct (including dredging and filling), operate, maintain,
utilize, occupy, garrison and control the bases."375 No similarly explicit provision is present in EDCA.

Nevertheless, the threshold for allowing the presence of foreign military facilities and bases has been
raised by the present Constitution. Section 25 is explicit that foreign military bases, troops, or facilities
shall not be allowed in the Philippines, except under a treaty duly concurred in by the Senate. Merely
stating that the Philippines would retain ownership would do violence to the constitutional requirement if
the Agreed Locations were simply to become a less obvious manifestation of the U.S. bases that were
rejected in 1991.

When debates took place over the military provisions of the Constitution, the committee rejected a
specific provision proposed by Commissioner Sarmiento. The discussion illuminates and provides
context to the 1986 Constitutional Commission's vision of control and independence from the U.S., to
wit:

MR. SARMIENTO: Madam President, my proposed amendment reads as follows: "THE STATE SHALL
ESTABLISH AND MAINTAIN AN INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE
PHILIPPINES." Allow me to briefly explain, Madam President. The Armed Forces of the Philippines is a
vital component of Philippine society depending upon its training, orientation and support. It will either
be the people's protector or a staunch supporter of a usurper or tyrant, local and foreign interest. The
Armed Forces of the Philippines' past and recent experience shows it has never been
independent and self-reliant. Facts, data and statistics will show that it has been substantially
dependent upon a foreign power. In March 1968, Congressman Barbero, himself a member of the
Armed Forces of the Philippines, revealed top secret documents showing what he described as U.S.
dictation over the affairs of the Armed Forces of the Philippines. He showed that under existing
arrangements, the United States unilaterally determines not only the types and quantity of arms
and equipments that our armed forces would have, but also the time when these items are to be
made available to us. It is clear, as he pointed out, that the composition, capability and schedule
of development of the Armed Forces of the Philippines is under the effective control of the U.S.
government.376 (Emphases supplied)

Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that would assert
"independent" and "self-reliant" armed forces. This proposal was rejected by the committee,
however. As Commissioner De Castro asserted, the involvement of the Philippine military with
the U.S. did not, by itself, rob the Philippines of its real independence. He made reference to the
context of the times: that the limited resources of the Philippines and the current insurgency at that time
necessitated a strong military relationship with the U.S. He said that the U.S. would not in any way
control the Philippine military despite this relationship and the fact that the former would furnish military
hardware or extend military assistance and training to our military. Rather, he claimed that the proposal
was in compliance with the treaties between the two states.

MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on 12
September 1986, I spoke on the selfreliance policy of the armed forces. However, due to very limited
resources, the only thing we could do is manufacture small arms ammunition. We cannot blame the
armed forces. We have to blame the whole Republic of the Philippines for failure to provide the
necessary funds to make the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream. And
I would like it that way. But as of this time, fighting an insurgency case, a rebellion in our country -
insurgency - and with very limited funds and very limited number of men, it will be quite impossible for
the Philippines to appropriate the necessary funds therefor. However, if we say that the U.S.
government is furnishing us the military hardware, it is not control of our armed forces or of our
government. It is in compliance with the Mutual Defense Treaty. It is under the military assistance
program that it becomes the responsibility of the United States to furnish us the necessary hardware in
connection with the military bases agreement. Please be informed that there are three (3) treaties
connected with the military bases agreement; namely: the RP-US Military Bases Agreement, the Mutual
Defense Treaty and the Military Assistance Program.
48

My dear Commissioner, when we enter into a treaty and we are furnished the military hardware
Page

pursuant to that treaty, it is not in control of our armed forces nor control of our
 government. True indeed, we have military officers trained in the U.S. armed forces school. This is
part of our Military Assistance Program, but it does not mean that the minds of our military officers are
for the U.S. government, no. I am one of those who took four courses in the United States schools, but I
assure you, my mind is for the Filipino people. Also, while we are sending military officers to train or to
study in U.S. military schools, we are also sending our officers to study in other military schools such as
in Australia, England and in Paris. So, it does not mean that when we send military officers to United
States schools or to other military schools, we will be under the control of that country. We also have
foreign officers in our schools, we in the Command and General Staff College in Fort Bonifacio and in
our National Defense College, also in Fort Bonifacio.377 (Emphases supplied)

This logic was accepted in Tañada v. Angara, in which the Court ruled that independence does not
mean the absence of foreign participation:

Furthermore, the constitutional policy of a "self-reliant and independent national economy" does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither
"economic seclusion" nor "mendicancy in the international community." As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional policy:

Economic self reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue foreign control of the national
economy, especially in such strategic industries as in the development of natural resources and public
utilities.378 (Emphases supplied)

The heart of the constitutional restriction on foreign military facilities and bases is therefore the
assertion of independence from the U.S. and other foreign powers, as independence is exhibited by the
degree of foreign control exerted over these areas.1âwphi1 The essence of that independence is self-
governance and self-control.379 Independence itself is "[t]he state or condition of being free from
dependence, subjection, or control. "380

Petitioners assert that EDCA provides the U.S. extensive control and authority over Philippine facilities
and locations, such that the agreement effectively violates Section 25 of the 1987 Constitution. 381

Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational control and
defense." The term "operational control" has led petitioners to regard U.S. control over the Agreed
Locations as unqualified and, therefore, total.382 Petitioners contend that the word "their" refers to the
subject "Agreed Locations."

This argument misreads the text, which is quoted below:

United States forces are authorized to exercise all rights and authorities within Agreed Locations that
are necessary for their operational control or defense, including taking appropriate measure to protect
United States forces and United States contractors. The United States should coordinate such
measures with appropriate authorities of the Philippines.

A basic textual construction would show that the word "their," as understood above, is a possessive
pronoun for the subject "they," a third-person personal pronoun in plural form. Thus, "their" cannot be
used for a non-personal subject such as "Agreed Locations." The simple grammatical conclusion is that
"their" refers to the previous third-person plural noun, which is "United States forces." This conclusion is
in line with the definition of operational control.

a. U.S. operational control as the exercise of authority over U.S. personnel, and not over the Agreed
Locations

Operational control, as cited by both petitioner and respondents, is a military term referring to

[t]he authority to perform those functions of command over subordinate forces involving organizing and
employing commands and forces, assigning tasks, designating objective, and giving authoritative
direction necessary to accomplish the mission.383

At times, though, operational control can mean something slightly different. In JUSMAG Philippines v.
49

National Labor Relations Commission, the Memorandum of Agreement between the AFP and JUSMAG
Philippines defined the term as follows:384
Page
 The term "Operational Control" includes, but is not limited to, all personnel administrative actions, such
as: hiring recommendations; firing recommendations; position classification; discipline; nomination and
approval of incentive awards; and payroll computation.

Clearly, traditional standards define "operational control" as personnel control. Philippine law, for
instance, deems operational control as one exercised by police officers and civilian authorities over
their subordinates and is distinct from the administrative control that they also exercise over police
subordinates.385 Similarly, a municipal mayor exercises operational control over the police within the
municipal government,386 just as city mayor possesses the same power over the police within the city
government.387

Thus, the legal concept of operational control involves authority over personnel in a commander-
subordinate relationship and does not include control over the Agreed Locations in this particular case.
Though not necessarily stated in EDCA provisions, this interpretation is readily implied by the reference
to the taking of "appropriate measures to protect United States forces and United States contractors."

It is but logical, even necessary, for the U.S. to have operational control over its own forces, in much
the same way that the Philippines exercises operational control over its own units.

For actual operations, EDCA is clear that any activity must be planned and pre-approved by the MDB-
SEB.388 This provision evinces the partnership aspect of EDCA, such that both stakeholders have a say
on how its provisions should be put into effect.

b. Operational control vis-à-vis effective command and control

Petitioners assert that beyond the concept of operational control over personnel, qualifying access to
the Agreed Locations by the Philippine Designated Authority with the phrase "consistent with
operational safety and security requirements in accordance with agreed procedures developed by the
Parties" leads to the conclusion that the U.S. exercises effective control over the Agreed
Locations.389 They claim that if the Philippines exercises possession of and control over a given area,
its representative should not have to be authorized by a special provision.390

For these reasons, petitioners argue that the "operational control" in EDCA is the "effective command
and control" in the 1947 MBA.391 In their Memorandum, they distinguish effective command and control
from operational control in U.S. parlance.392 Citing the Doctrine for the Armed Forces of the United
States, Joint Publication 1, "command and control (C2)" is defined as "the exercise of authority and
direction by a properly designated commander over assigned and attached forces in the
accomplishment of the mission x x x."393 Operational control, on the other hand, refers to "[t]hose
functions of command over assigned forces involving the composition of subordinate forces, the
assignment of tasks, the designation of objectives, the overall control of assigned resources, and the
full authoritative direction necessary to accomplish the mission."394

Two things demonstrate the errors in petitioners' line of argument.

Firstly, the phrase "consistent with operational safety and security requirements in accordance with
agreed procedures developed by the Parties" does not add any qualification beyond that which is
already imposed by existing treaties. To recall, EDCA is based upon prior treaties, namely the VFA and
the MDT.395 Treaties are in themselves contracts from which rights and obligations may be claimed or
waived.396 In this particular case, the Philippines has already agreed to abide by the security
mechanisms that have long been in place between the U.S. and the Philippines based on the
implementation of their treaty relations.397

Secondly, the full document cited by petitioners contradicts the equation of "operational control" with
"effective command and control," since it defines the terms quite differently, viz:398

Command and control encompasses the exercise of authority, responsibility, and direction by a
commander over assigned and attached forces to accomplish the mission. Command at all levels is the
art of motivating and directing people and organizations into action to accomplish missions. Control is
inherent in command. To control is to manage and direct forces and functions consistent with a
commander's command authority. Control of forces and functions helps commanders and staffs
compute requirements, allocate means, and integrate efforts. Mission command is the preferred
method of exercising C2. A complete discussion of tenets, organization, and processes for effective C2
is provided in Section B, "Command and Control of Joint Forces," of Chapter V "Joint Command and
50

Control."
Page
 Operational control is defined thus:399

OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform
those functions of command over subordinate forces involving organizing and employing commands
and forces, assigning tasks, designating objectives, and giving authoritative direction over all aspects of
military operations and joint training necessary to accomplish the mission. It should be delegated to and
exercised by the commanders of subordinate organizations; normally, this authority is exercised
through subordinate JFCs, Service, and/or functional component commanders. OPCON provides
authority to organize and employ commands and forces as the commander considers necessary to
accomplish assigned missions. It does not include authoritative direction for logistics or matters of
administration, discipline, internal organization, or unit training. These elements of COCOM must be
specifically delegated by the CCDR. OPCON does include the authority to delineate functional
responsibilities and operational areas of subordinate JFCs.

Operational control is therefore the delegable aspect of combatant command, while command and
control is the overall power and responsibility exercised by the commander with reference to a mission.
Operational control is a narrower power and must be given, while command and control is plenary and
vested in a commander. Operational control does not include the planning, programming, budgeting,
and execution process input; the assignment of subordinate commanders; the building of relationships
with Department of Defense agencies; or the directive authority for logistics, whereas these factors are
included in the concept of command and control.400

This distinction, found in the same document cited by petitioners, destroys the very foundation of the
arguments they have built: that EDCA is the same as the MBA.

c. Limited operational control over the Agreed Locations only for construction activitites

As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S. operational
control within the Agreed Locations during construction activities.401 This exercise of operational control
is premised upon the approval by the MDB and the SEB of the construction activity through
consultation and mutual agreement on the requirements and standards of the construction, alteration,
or improvement.402

Despite this grant of operational control to the U.S., it must be emphasized that the grant is only for
construction activities. The narrow and limited instance wherein the U.S. is given operational control
within an Agreed Location cannot be equated with foreign military control, which is so abhorred by the
Constitution.

The clear import of the provision is that in the absence of construction activities, operational control
over the Agreed Location is vested in the Philippine authorities. This meaning is implicit in the specific
grant of operational control only during construction activities. The principle of constitutional
construction, "expressio unius est exclusio alterius," means the failure to mention the thing becomes
the ground for inferring that it was deliberately excluded.403 Following this construction, since EDCA
mentions the existence of U.S. operational control over the Agreed Locations for construction activities,
then it is quite logical to conclude that it is not exercised over other activities.

Limited control does not violate the Constitution. The fear of the commissioners was total control, to the
point that the foreign military forces might dictate the terms of their acts within the Philippines. 404 More
important, limited control does not mean an abdication or derogation of Philippine sovereignty and legal
jurisdiction over the Agreed Locations. It is more akin to the extension of diplomatic courtesies and
rights to diplomatic agents,405 which is a waiver of control on a limited scale and subject to the terms of
the treaty.

This point leads us to the second standard envisioned by the framers of the Constitution: that the
Philippines must retain sovereignty and jurisdiction over its territory.

ii. Second standard: Philippine sovereignty and applicable law

EDCA states in its Preamble the "understanding for the United States not to establish a permanent
military presence or base in the territory of the Philippines." Further on, it likewise states the recognition
that "all United States access to and use of facilities and areas will be at the invitation of the Philippines
and with full respect for the Philippine Constitution and Philippine laws."
51

The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine
Page

sovereignty and jurisdiction over the Agreed Locations.

 Sovereignty is the possession of sovereign power,406 while jurisdiction is the conferment by law of
power and authority to apply the law.407 Article I of the 1987 Constitution states:

The national territory comprises the Philippine archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting
of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the
insular shelves, and other submarine areas. The waters around, between, and connecting the islands
of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the
Philippines. (Emphasis supplied)

From the text of EDCA itself, Agreed Locations are territories of the Philippines that the U.S. forces are
allowed to access and use.408 By withholding ownership of these areas and retaining unrestricted
access to them, the government asserts sovereignty over its territory. That sovereignty exists so long
as the Filipino people exist.409

Significantly, the Philippines retains primary responsibility for security with respect to the Agreed
Locations.410 Hence, Philippine law remains in force therein, and it cannot be said that jurisdiction has
been transferred to the U.S. Even the previously discussed necessary measures for operational control
and defense over U.S. forces must be coordinated with Philippine authorities.411

Jurisprudence bears out the fact that even under the former legal regime of the MBA, Philippine laws
continue to be in force within the bases.412 The difference between then and now is that EDCA retains
the primary jurisdiction of the Philippines over the security of the Agreed Locations, an important
provision that gives it actual control over those locations. Previously, it was the provost marshal of the
U.S. who kept the peace and enforced Philippine law in the bases. In this instance, Philippine forces act
as peace officers, in stark contrast to the 1947 MBA provisions on jurisdiction. 413

iii. Third standard: must respect national security and territorial integrity

The last standard this Court must set is that the EDCA provisions on the Agreed Locations must not
impair or threaten the national security and territorial integrity of the Philippines.

This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially rendered
the prior notion of permanent military bases obsolete.

Moreover, military bases established within the territory of another state is no longer viable because of
the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without
returning to their home country. These military warships are actually used as substitutes for a land-
home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are
mobile as compared to a land-based military headquarters.414

The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow, for
instance, the re-establishment of the Subic military base or the Clark Air Field as U.S. military
reservations. In this context, therefore, this Court has interpreted the restrictions on foreign bases,
troops, or facilities as three independent restrictions. In accord with this interpretation, each restriction
must have its own qualification.

Petitioners quote from the website http://en.wikipedia.org to define what a military base is.415 While the
source is not authoritative, petitioners make the point that the Agreed Locations, by granting access
and use to U.S. forces and contractors, are U.S. bases under a different name. 416 More important, they
claim that the Agreed Locations invite instances of attack on the Philippines from enemies of the U.S.417

We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of politics
and policy. At the very least, we can say that under international law, EDCA does not provide a legal
basis for a justified attack on the Philippines.

In the first place, international law disallows any attack on the Agreed Locations simply because of the
presence of U.S. personnel. Article 2(4) of the United Nations Charter states that "All Members shall
refrain in their international relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the Purposes of the United
Nations."418 Any unlawful attack on the Philippines breaches the treaty, and triggers Article 51 of the
same charter, which guarantees the inherent right of individual or collective self-defence.
52
Page
 Moreover, even if the lawfulness of the attack were not in question, international humanitarian law
standards prevent participants in an armed conflict from targeting non-participants. International
humanitarian law, which is the branch of international law applicable to armed conflict, expressly limits
allowable military conduct exhibited by forces of a participant in an armed conflict. 419 Under this legal
regime, participants to an armed conflict are held to specific standards of conduct that require them to
distinguish between combatants and non-combatants,420 as embodied by the Geneva Conventions and
their Additional Protocols.421

Corollary to this point, Professor John Woodcliffe, professor of international law at the University of
Leicester, noted that there is no legal consensus for what constitutes a base, as opposed to other terms
such as "facilities" or "installation."422 In strategic literature, "base" is defined as an installation "over
which the user State has a right to exclusive control in an extraterritorial sense."423 Since this definition
would exclude most foreign military installations, a more important distinction must be made.

For Woodcliffe, a type of installation excluded from the definition of "base" is one that does not fulfill a
combat role. He cites an example of the use of the territory of a state for training purposes, such as to
obtain experience in local geography and climactic conditions or to carry out joint exercises.424 Another
example given is an advanced communications technology installation for purposes of information
gathering and communication.425 Unsurprisingly, he deems these non-combat uses as borderline
situations that would be excluded from the functional understanding of military bases and
installations.426

By virtue of this ambiguity, the laws of war dictate that the status of a building or person is presumed to
be protected, unless proven otherwise.427 Moreover, the principle of distinction requires combatants in
an armed conflict to distinguish between lawful targets428 and protected targets.429 In an actual armed
conflict between the U.S. and a third state, the Agreed Locations cannot be considered U.S. territory,
since ownership of territory even in times of armed conflict does not change. 430

Hence, any armed attack by forces of a third state against an Agreed Location can only be legitimate
under international humanitarian law if it is against a bona fide U.S. military base, facility, or installation
that directly contributes to the military effort of the U.S. Moreover, the third state's forces must take all
measures to ensure that they have complied with the principle of distinction (between combatants and
non-combatants).

There is, then, ample legal protection for the Philippines under international law that would ensure its
territorial integrity and national security in the event an Agreed Location is subjected to attack. As
EDCA stands, it does not create the situation so feared by petitioners - one in which the Philippines,
while not participating in an armed conflict, would be legitimately targeted by an enemy of the U.S.431

In the second place, this is a policy question about the wisdom of allowing the presence of U.S.
personnel within our territory and is therefore outside the scope of judicial review.

Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or facilities within
the military base of another sovereign state is nothing new on the international plane. In fact, this
arrangement has been used as the framework for several defense cooperation agreements, such as in
the following:

1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432

2. 2009 U.S.-Colombia Defense Cooperation Agreement433

3. 2009 U.S.-Poland Status of Forces Agreement434

4. 2014 U.S.-Australia Force Posture Agreement435

5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436

In all of these arrangements, the host state grants U.S. forces access to their military bases. 437 That
access is without rental or similar costs to the U.S.438 Further, U.S. forces are allowed to undertake
construction activities in, and make alterations and improvements to, the agreed locations, facilities, or
areas.439 As in EDCA, the host states retain ownership and jurisdiction over the said bases.440
53

In fact, some of the host states in these agreements give specific military-related rights to the U.S. For
example, under Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United States
Page

forces x x x are authorized access to and may use agreed facilities and areas x x x for staging and
 deploying of forces and materiel, with the purpose of conducting x x x contingency operations and other
missions, including those undertaken in the framework of the North Atlantic Treaty." In some of these
agreements, host countries allow U.S. forces to construct facilities for the latter’s exclusive use. 441

Troop billeting, including construction of temporary structures, is nothing new. In Lim v. Executive
Secretary, the Court already upheld the Terms of Reference of Balikatan 02-1, which authorized U.S.
forces to set up "[t]emporary structures such as those for troop billeting, classroom instruction and
messing x x x during the Exercise." Similar provisions are also in the Mutual Logistics Support
Agreement of 2002 and 2007, which are essentially executive agreements that implement the VFA, the
MDT, and the 1953 Military Assistance Agreement. These executive agreements similarly tackle the
"reciprocal provision of logistic support, supplies, and services,"442 which include "[b ]illeting, x x x
operations support (and construction and use of temporary structures incident to operations support),
training services, x x x storage services, x x x during an approved activity."443 These logistic supplies,
support, and services include temporary use of "nonlethal items of military equipment which are not
designated as significant military equipment on the U.S. Munitions List, during an approved
activity."444 The first Mutual Logistics Support Agreement has lapsed, while the second one has been
extended until 2017 without any formal objection before this Court from the Senate or any of its
members.

The provisions in EDCA dealing with Agreed Locations are analogous to those in the aforementioned
executive agreements. Instead of authorizing the building of temporary structures as previous
agreements have done, EDCA authorizes the U.S. to build permanent structures or alter or improve
existing ones for, and to be owned by, the Philippines.445 EDCA is clear that the Philippines retains
ownership of altered or improved facilities and newly constructed permanent or non-relocatable
structures.446 Under EDCA, U.S. forces will also be allowed to use facilities and areas for "training; x x
x; support and related activities; x x x; temporary accommodation of personnel; communications" and
agreed activities.447

Concerns on national security problems that arise from foreign military equipment being present in the
Philippines must likewise be contextualized. Most significantly, the VFA already authorizes the
presence of U.S. military equipment in the country. Article VII of the VFA already authorizes the
U.S. to import into or acquire in the Philippines "equipment, materials, supplies, and other property" that
will be used "in connection with activities" contemplated therein. The same section also recognizes that
"[t]itle to such property shall remain" with the US and that they have the discretion to "remove such
property from the Philippines at any time."

There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense
equipment, supplies, and materiel,"448 since these are sanctioned in the VFA. In fact, the two countries
have already entered into various implementing agreements in the past that are comparable to the
present one. The Balikatan 02-1 Terms of Reference mentioned in Lim v. Executive
Secretary specifically recognizes that Philippine and U.S. forces "may share x x x in the use of their
resources, equipment and other assets." Both the 2002 and 2007 Mutual Logistics Support Agreements
speak of the provision of support and services, including the "construction and use of temporary
structures incident to operations support" and "storage services" during approved activities.449 These
logistic supplies, support, and services include the "temporary use of x x x nonlethal items of military
equipment which are not designated as significant military equipment on the U.S. Munitions List, during
an approved activity."450 Those activities include "combined exercises and training, operations and
other deployments" and "cooperative efforts, such as humanitarian assistance, disaster relief and
rescue operations, and maritime anti-pollution operations" within or outside Philippine territory.451 Under
EDCA, the equipment, supplies, and materiel that will be prepositioned at Agreed Locations include
"humanitarian assistance and disaster relief equipment, supplies, and materiel. "452 Nuclear weapons
are specifically excluded from the materiel that will be prepositioned.

Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to our national
security. If anything, EDCA increases the likelihood that, in an event requiring a defensive response,
the Philippines will be prepared alongside the U.S. to defend its islands and insure its territorial integrity
pursuant to a relationship built on the MDT and VFA.

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only refers to mutual help
and defense in the Pacific area.453 We believe that any discussion of the activities to be undertaken
under EDCA vis-a-vis the defense of areas beyond the Pacific is premature. We note that a proper
54

petition on that issue must be filed before we rule thereon. We also note that none of the petitions or
memoranda has attempted to discuss this issue, except only to theorize that the U.S. will not come to
Page
 our aid in the event of an attack outside of the Pacific. This is a matter of policy and is beyond the
scope of this judicial review.

In reference to the issue on telecommunications, suffice it to say that the initial impression of the facility
adverted to does appear to be one of those that require a public franchise by way of congressional
action under Section 11, Article XII of the Constitution. As respondents submit, however, the system
referred to in the agreement does not provide telecommunications services to the public for
compensation.454 It is clear from Article VIl(2) of EDCA that the telecommunication system is solely for
the use of the U.S. and not the public in general, and that this system will not interfere with that which
local operators use. Consequently, a public franchise is no longer necessary.

Additionally, the charge that EDCA allows nuclear weapons within Philippine territory is entirely
speculative. It is noteworthy that the agreement in fact specifies that the prepositioned materiel shall not
include nuclear weapons.455 Petitioners argue that only prepositioned nuclear weapons are prohibited
by EDCA; and that, therefore, the U.S. would insidiously bring nuclear weapons to Philippine
territory.456 The general prohibition on nuclear weapons, whether prepositioned or not, is already
expressed in the 1987 Constitution.457 It would be unnecessary or superfluous to include all prohibitions
already in the Constitution or in the law through a document like EDCA.

Finally, petitioners allege that EDCA creates a tax exemption, which under the law must originate from
Congress. This allegation ignores jurisprudence on the government's assumption of tax liability. EDCA
simply states that the taxes on the use of water, electricity, and public utilities are for the account of the
Philippine Government.458 This provision creates a situation in which a contracting party assumes the
tax liability of the other.459 In National Power Corporation v. Province of Quezon, we distinguished
between enforceable and unenforceable stipulations on the assumption of tax liability. Afterwards, we
concluded that an enforceable assumption of tax liability requires the party assuming the liability to
have actual interest in the property taxed.460 This rule applies to EDCA, since the Philippine
Government stands to benefit not only from the structures to be built thereon or improved, but also from
the joint training with U.S. forces, disaster preparation, and the preferential use of Philippine
suppliers.461 Hence, the provision on the assumption of tax liability does not constitute a tax exemption
as petitioners have posited.

Additional issues were raised by petitioners, all relating principally to provisions already sufficiently
addressed above. This Court takes this occasion to emphasize that the agreement has been construed
herein as to absolutely disauthorize the violation of the Constitution or any applicable statute. On the
contrary, the applicability of Philippine law is explicit in EDCA.

EPILOGUE

The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted personalities
in Philippine history arises not so much from xenophobia, but from a genuine desire for self-
determination, nationalism, and above all a commitment to ensure the independence of the Philippine
Republic from any foreign domination.

Mere fears, however, cannot curtail the exercise by the President of the Philippines of his Constitutional
prerogatives in respect of foreign affairs. They cannot cripple him when he deems that additional
security measures are made necessary by the times. As it stands, the Philippines through the
Department of Foreign Affairs has filed several diplomatic protests against the actions of the People's
Republic of China in the West Philippine Sea;462 initiated arbitration against that country under the
United Nations Convention on the Law of the Sea;463 is in the process of negotiations with the Moro
Islamic Liberation Front for peace in Southern Philippines,464 which is the subject of a current case
before this Court; and faces increasing incidents of kidnappings of Filipinos and foreigners allegedly by
the Abu Sayyaf or the New People's Army.465 The Philippine military is conducting reforms that seek to
ensure the security and safety of the nation in the years to come.466 In the future, the Philippines must
navigate a world in which armed forces fight with increasing sophistication in both strategy and
technology, while employing asymmetric warfare and remote weapons.

Additionally, our country is fighting a most terrifying enemy: the backlash of Mother Nature. The
Philippines is one of the countries most directly affected and damaged by climate change. It is no
coincidence that the record-setting tropical cyclone Yolanda (internationally named Haiyan), one of the
most devastating forces of nature the world has ever seen hit the Philippines on 8 November 2013 and
killed at least 6,000 people.467 This necessitated a massive rehabilitation project.468 In the aftermath, the
U.S. military was among the first to extend help and support to the Philippines.
55
Page
 That calamity brought out the best in the Filipinos as thousands upon thousands volunteered their help,
their wealth, and their prayers to those affected. It also brought to the fore the value of having friends in
the international community.

In order to keep the peace in its archipelago in this region of the world, and to sustain itself at the same
time against the destructive forces of nature, the Philippines will need friends. Who they are, and what
form the friendships will take, are for the President to decide. The only restriction is what the
Constitution itself expressly prohibits. It appears that this overarching concern for balancing
constitutional requirements against the dictates of necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent with
existing laws and treaties that it purports to implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Chief Justice

WE CONCUR:

G.R. No. 138570 October 10, 2000

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS

MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of
Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS,
KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW
CENTER, petitioners,
vs.
EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO
SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE,
SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS
OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents.

x-----------------------x

G.R. No. 138572 October 10, 2000

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,

AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners,
vs.
HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Secretary
of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign
Affairs, respondents.

x-----------------------x

G.R. No. 138587 October 10, 2000

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEÑA III, petitioners,
vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B.
MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G.
BIAZON, respondents.

x-----------------------x

G.R. No. 138680 October 10, 2000

56

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon, petitioners,
Page

vs.
 JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and
HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.

x-----------------------x

G.R. No. 138698 October 10, 2000

JOVITO R. SALONGA, WIGBERTO TAÑADA, ZENAIDA QUEZON-AVENCEÑA, ROLANDO

SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P.
ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE,
SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL,
SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES
AGREEMENT (VFA), respondents.

DECISION

BUENA, J.:

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

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases
Agreement which formalized, among others, the use of installations in the Philippine territory by United
States military personnel. To further strengthen their defense and security relationship, the Philippines
and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the
parties agreed to respond to any external armed attack on their territory, armed forces, public vessels,
and aircraft.1

In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and
the United States negotiated for a possible extension of the military bases agreement. On September
16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and
Security which, in effect, would have extended the presence of US military bases in the
Philippines.2 With the expiration of the RP-US Military Bases Agreement, the periodic military exercises
conducted between the two countries were held in abeyance. Notwithstanding, the defense and
security relationship between the Philippines and the United States of America continued pursuant to
the Mutual Defense Treaty.

On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia
Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo
Severino Jr., to exchange notes on "the complementing strategic interests of the United States and the
Philippines in the Asia-Pacific region." Both sides discussed, among other things, the possible elements
of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a
consolidated draft text, which in turn resulted to a final series of conferences and negotiations3 that
culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved
the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.

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

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines,5 the Instrument of Ratification, the letter of the
President6 and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution.
The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator Blas F.
Ople, and its Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for
their joint consideration and recommendation. Thereafter, joint public hearings were held by the two
57

Committees.7
Page
 On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 4438 recommending the
concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee
its implementation. Debates then ensued.

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds
(2/3) vote9 of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No.
18.10

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent
Secretary Siazon and United States Ambassador Hubbard.

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

"Article I
Definitions

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

"Within this definition:

"1. The term ‘military personnel’ refers to military members of the United States Army, Navy,
Marine Corps, Air Force, and Coast Guard.

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

"Article II
Respect for Law

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

"Article III
Entry and Departure

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

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

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

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

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

"(c) the commanding officer of a military aircraft or vessel shall present a declaration of
health, and when required by the cognizant representative of the Government of the
58

Philippines, shall conduct a quarantine inspection and will certify that the aircraft or
vessel is free from quarantinable diseases. Any quarantine inspection of United States
Page

aircraft or United States vessels or cargoes thereon shall be conducted by the United
 States commanding officer in accordance with the international health regulations as
promulgated by the World Health Organization, and mutually agreed procedures.

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

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

"Article IV

Driving and Vehicle Registration

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

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

"Article V
Criminal Jurisdiction

"1. Subject to the provisions of this article:

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

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

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

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

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

(1) treason;

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

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

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

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

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

(2) offenses arising out of any act or omission done in performance of official duty.
59
Page

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

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

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

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

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

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

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

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

"8. When United States personnel have been tried in accordance with the provisions of this Article and
have been acquitted or have been convicted and are serving, or have served their sentence, or have
had their sentence remitted or suspended, or have been pardoned, they may not be tried again for the
same offense in the Philippines. Nothing in this paragraph, however, shall prevent United States
military authorities from trying United States personnel for any violation of rules of discipline arising
from the act or omission which constituted an offense for which they were tried by Philippine authorities.
60

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

At the minimum, United States personnel shall be entitled:

 (a) To a prompt and speedy trial;

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

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

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

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

(f) To have the service of a competent interpreter; and

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

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

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

"Article VI
Claims

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

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

"Article VII
Importation and Exportation

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

"2. Reasonable quantities of personal baggage, personal effects, and other property for the
personal use of United States personnel may be imported into and used in the Philippines free
of all duties, taxes and other similar charges during the period of their temporary stay in the
Philippines. Transfers to persons or entities in the Philippines not entitled to import privileges
may only be made upon prior approval of the appropriate Philippine authorities including
61

payment by the recipient of applicable duties and taxes imposed in accordance with the laws of
the Philippines. The exportation of such property and of property acquired in the Philippines by
Page

United States personnel shall be free of all Philippine duties, taxes, and other similar charges.
 "Article VIII
Movement of Vessels and Aircraft

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

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

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

"Article IX
Duration and Termination

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

Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators, non-
governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute
to herein respondents grave abuse of discretion in ratifying the agreement.

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

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

II

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

III

Does the VFA constitute an abdication of Philippine sovereignty?

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

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

IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?

b. the Prohibition against nuclear weapons under Article II, Section 8?

62

c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for
Page

the equipment, materials supplies and other properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed Forces?
 LOCUS STANDI

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

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

In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As
taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its taxing
or spending powers.15 On this point, it bears stressing that a taxpayer’s suit refers to a case where the
act complained of directly involves the illegal disbursement of public funds derived from
taxation.16 Thus, in Bugnay Const. & Development Corp. vs. Laron17 , we held:

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

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of
any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the legality of the VFA.

Similarly, Representatives Wigberto Tañada, Agapito Aquino and Joker Arroyo, as petitioners-
legislators, do not possess the requisite locus standi to maintain the present suit. While this Court,
in Phil. Constitution Association vs. Hon. Salvador Enriquez,18 sustained the legal standing of a
member of the Senate and the House of Representatives to question the validity of a presidential veto
or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold
petitioners’ standing as members of Congress, in the absence of a clear showing of any direct injury to
their person or to the institution to which they belong.

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

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

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

"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders issued by President Quirino although they were involving only an indirect and general interest
shared in common with the public. The Court dismissed the objection that they were not proper parties
and ruled that ‘transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must, technicalities of procedure.’ We have
since then applied the exception in many other cases. (Association of Small Landowners in the
Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)." (Underscoring Supplied)
63
Page
 This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs.
Singson,22 and Basco vs. Phil. Amusement and Gaming Corporation,23 where we emphatically
held:

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

Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,24 thisCourt ruled that in cases of
transcendental importance, the Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the departments of the government a becoming respect for
each others’ acts,25 this Court nevertheless resolves to take cognizance of the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

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

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

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

Section 25, Article XVIII, provides:

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

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

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

It is our considered view that both constitutional provisions, far from contradicting each other, actually
share some common ground. These constitutional provisions both embody phrases in the negative and
thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause
64

"No treaty x x x," and Section 25 contains the phrase "shall not be allowed." Additionally, in both
Page
 instances, the concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.

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

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

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

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

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

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

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

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

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

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

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

65
Page
 This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If
the country does enter into such kind of a treaty, must it cover the three-bases, troops or
facilities-or could the treaty entered into cover only one or two?

FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the
requirement will be the same.

MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not
bases but merely troops?

FR. BERNAS. Yes.

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

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

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

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

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

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

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members
of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be "duly
concurred in by the Senate."

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

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

Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24)
Senators.30 Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)
members, favorably acting on the proposal is an unquestionable compliance with the requisite number
66

of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23)
incumbent Senators at the time the voting was made,31 will not alter in any significant way the
Page

circumstance that more than two-thirds of the members of the Senate concurred with the proposed
 VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this
regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes,
suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the
subject treaty.

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

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

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

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

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

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

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

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

Thus, in international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the negotiating functionaries have remained within
their powers.38 International law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations.39

In our jurisdiction, we have recognized the binding effect of executive agreements even without the
concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea
Trading,40 we had occasion to pronounce:

"x x x the right of the Executive to enter into binding agreements without the necessity of subsequent
congressional approval has been confirmed by long usage. From the earliest days of our history we
have entered into executive agreements covering such subjects as commercial and consular relations,
most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never been seriously questioned
by our courts.
67

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

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

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

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

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

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the
Senate should be taken as a clear an unequivocal expression of our nation’s consent to be bound by
said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied
thereunder.

Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is proclaimed. 43 A
State may provide in its domestic legislation the process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation.44

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

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

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

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International
Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty."48
68
Page

Equally important is Article 26 of the convention which provides that "Every treaty in force is binding
upon the parties to it and must be performed by them in good faith." This is known as the principle
 of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.49

NO GRAVE ABUSE OF DISCRETION

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

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

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

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

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

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

As to the power to concur with treaties, the constitution lodges the same with the Senate
alone.1âwphi1 Thus, once the Senate56 performs that power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to
constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the exercise of
its discretion and acting within the limits of such power, may not be similarly faulted for having simply
performed a task conferred and sanctioned by no less than the fundamental law.
69

For the role of the Senate in relation to treaties is essentially legislative in character;57 the Senate, as an
Page

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

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

WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.

SO ORDERED.

G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCEY GLORIA
MACAPAGAL-ARROYO, and HONORABLE ANGELO REYES in his capacity as Secretary of
National Defense, respondents.

----------------------------------------

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,

vs.
GLORIA MACAPAGA-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.

DISSENTING OPINION

SEPARATE OPINION

DE LEON, JR., J.:

This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying
that respondents be restrained from proceeding with the so-called "Balikatan 02-1" and that after due
notice and hearing, that judgment be rendered issuing a permanent writ of injunction and/or prohibition
against the deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of the
Constitution.

The facts are as follows:

Beginning January of this year 2002, personnel from the armed forces of the United States of America
started arriving in Mindanao to take part, in conjunction with the Philippine military, in "Balikatan 02-1."
These so-called "Balikatan" exercises are the largest combined training operations involving Filipino
and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual
Defense Treaty,1 a bilateral defense agreement entered into by the Philippines and the United States in
1951.

Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any formal
agreement relative to the treatment of United States personnel visiting the Philippines. In the meantime,
70

the respective governments of the two countries agreed to hold joint exercises on a reduced scale. The
lack of consensus was eventually cured when the two nations concluded the Visiting Forces Agreement
Page

(V FA) in 1999.
 The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism
campaign declared by President George W. Bush in reaction to the tragic events that occurred on
September 11, 2001. On that day, three (3) commercial aircrafts were hijacked, flown and smashed into
the twin towers of the World Trade Center in New York City and the Pentagon building in Washington,
D.C. by terrorists with alleged links to the al-Qaeda ("the Base"), a Muslim extremist organization
headed by the infamous Osama bin Laden. Of no comparable historical parallels, these acts caused
billions of dollars worth of destruction of property and incalculable loss of hundreds of lives.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari
and prohibition, attacking the constitutionality of the joint exercise.2 They were joined subsequently by
SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist organizations, who filed a petition-in-
intervention on February 11, 2002.

Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and
PARTIDO, on the other hand, aver that certain members of their organization are residents of
Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in
Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the
unprecedented importance of the issue involved.

On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein Vice-
President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs, presented the
Draft Terms of Reference (TOR).3 Five days later, he approved the TOR, which we quote hereunder:

I. POLICY LEVEL

1. The Exercise shall be consistent with the Philippine Constitution and all its activities shall be
in consonance with the laws of the land and the provisions of the RP-US Visiting Forces
Agreement (VFA).

2. The conduct of this training Exercise is in accordance with pertinent United Nations
resolutions against global terrorism as understood by the respective parties.

3. No permanent US basing and support facilities shall be established. Temporary structures

such as those for troop billeting, classroom instruction and messing may be set up for use by
RP and US Forces during the Exercise.

4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the
authority of the Chief of Staff, AFP. In no instance will US Forces operate independently during
field training exercises (FTX). AFP and US Unit Commanders will retain command over their
respective forces under the overall authority of the Exercise Co-Directors. RP and US
participants shall comply with operational instructions of the AFP during the FTX.

5. The exercise shall be conducted and completed within a period of not more than six months,
with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff,
AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and other
activities within the six month Exercise period.

6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative
to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further
advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga
area. Related activities in Cebu will be for support of the Exercise.

7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP
field, commanders. The US teams shall remain at the Battalion Headquarters and, when
approved, Company Tactical headquarters where they can observe and assess the
performance of the AFP Forces.

8. US exercise participants shall not engage in combat, without prejudice to their right of self-
defense.

9. These terms of Reference are for purposes of this Exercise only and do not create additional
legal obligations between the US Government and the Republic of the Philippines.
71

II. EXERCISE LEVEL

Page
 1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and
training of RP and US Forces with the primary objective of enhancing the operational
capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic
regulations.

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of the
Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the
Filipinos and the provisions of the VF A. The briefing shall also promote the full
cooperation on the part of the RP and US participants for the successful conduct of the
Exercise.

b. RP and US participating forces may share, in accordance with their respective laws
and regulations, in the use of their resources, equipment and other assets. They will use
their respective logistics channels.

c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets
and resources.

d. Legal liaison officers from each respective party shall be appointed by the Exercise
Directors.

3. PUBLIC AFFAIRS

a. Combined RP-US Information Bureaus shall be established at the Exercise

Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City.

b. Local media relations will be the concern of the AFP and all public affairs guidelines
shall be jointly developed by RP and US Forces.

c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and

US Forces in accordance with their respective laws and regulations, and in consultation
with community and local government officials.

Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United
States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-
President and Assistant Secretary Kelly.4

Petitioners Lim and Ersando present the following arguments:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY
(MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN ACCORDANCE WITH
THE 'CONSTITUTIONAL PROCESSE-S' OF EACH COUNTRY ONLY IN THE CASE OF AN
ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY
AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU SAYYAF
BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT
THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY
ASSISTANCE UNDER THE MDT OF 1951.

II
72

NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN

COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED
Page

UPON".
 Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.

In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and
Ersando's standing to file suit, the prematurity of the action, as well as the impropriety of availing
of certiorari to ascertain a question of fact. Anent their locus standi, the Solicitor General argues
that first, they may not file suit in their capacities as, taxpayers inasmuch as it has not been shown that
"Balikatan 02-1 " involves the exercise of Congress' taxing or spending powers. Second, their being
lawyers does not invest them with sufficient personality to initiate the case, citing our ruling
in Integrated Bar of the Philippines v. Zamora.5 Third, Lim and Ersando have failed to demonstrate
the requisite showing of direct personal injury. We agree.

It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view
that since the Terms of Reference are clear as to the extent and duration of "Balikatan 02-1," the issues
raised by petitioners are premature, as they are based only on a fear of future violation of the Terms of
Reference. Even petitioners' resort to a special civil action for certiorari is assailed on the ground that
the writ may only issue on the basis of established facts.

Apart from these threshold issues, the Solicitor General claims that there is actually no question of
constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of the
V FA. The Solicitor General asks that we accord due deference to the executive determination that
"Balikatan 02-1" is covered by the VFA, considering the President's monopoly in the field of foreign
relations and her role as commander-in-chief of the Philippine armed forces.

Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in
a related case:

Notwithstanding, in view of the paramount importance and the constitutional significance

of the issues raised in the petitions, this Court, in the exercise of its sound discretion,
brushes aside the procedural barrier and takes cognizance of the petitions, as we have
done in the early Emergency Powers Cases, where we had occasion to rule:

'x x x ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although they were involving only
an indirect and general interest shared in common with the public. The Court dismissed
the objection that they were not proper parties and ruled that 'transcendental
importance to the public of these cases demands that they be settled promptly
and definitely, brushing aside, if we must, technicalities of procedure.' We have
since then applied the exception in many other cases. [citation omitted]

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

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

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases
of transcendental importance, the Court may relax the standing requirements and allow a
suit to prosper even where there is no direct injury to the party claiming the right of
judicial review.

Although courts generally avoid having to decide a constitutional question based on the doctrine
of separation of powers, which enjoins upon the department of the government a becoming
respect for each other's act, this Court nevertheless resolves to take cognizance of the instant
petition.6

Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At
any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US
personnel may undertake and the duration of their stay has been addressed in the Terms of Reference.
73

The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to which the
Page

Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT
 has been described as the "core" of the defense relationship between the Philippines and its traditional
ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed
forces through joint training with its American counterparts; the "Balikatan" is the largest such training
exercise directly supporting the MDT's objectives. It is this treaty to which the V FA adverts and the
obligations thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a
vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces
Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this Court
upheld the validity of the VFA.7 The V FA provides the "regulatory mechanism" by which "United States
military and civilian personnel [may visit] temporarily in the Philippines in connection with activities
approved by the Philippine Government." It contains provisions relative to entry and departure of
American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and
exportation, movement of vessels and aircraft, as well as the duration of the agreement and its
termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its
primary goal is to facilitate the promotion of optimal cooperation between American and Philippine
military forces in the event of an attack by a common foe.

The first question that should be addressed is whether "Balikatan 02-1" is covered by the Visiting
Forces Agreement. To resolve this, it is necessary to refer to the V FA itself: Not much help can be had
therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA
permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning
of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings
subject only to the approval of the Philippine government.8 The sole encumbrance placed on its
definition is couched in the negative, in that United States personnel must "abstain from any
activity inconsistent with the spirit of this agreement, and in particular, from any political activity."9 All
other activities, in other words, are fair game.

We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which
contains provisos governing interpretations of international agreements, state:

SECTION 3. INTERPRETATION OF TREATIES

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning to be given
to the tenus of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the
text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in
connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other parties as an instrument related to the
party .

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.
74

Article 32
Page

Supplementary means of interpretation

 Recourse may be had to supplementary means of interpretation, including the preparatory work
of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting
from the application of article 31, or to determine the meaning when the interpretation according
to article 31 :

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the
text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may
be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well
as other elements may be taken into account alongside the aforesaid context. As explained by a writer
on the Convention ,

[t]he Commission's proposals (which were adopted virtually without change by the conference
and are now reflected in Articles 31 and 32 of the Convention) were clearly based on the view
that the text of a treaty must be presumed to be the authentic expression of the intentions of the
parties; the Commission accordingly came down firmly in favour of the view that 'the starting
point of interpretation is the elucidation of the meaning of the text, not an investigation ab
initio into the intentions of the parties'. This is not to say that the travauxpreparatoires of a treaty
, or the circumstances of its conclusion, are relegated to a subordinate, and wholly ineffective,
role. As Professor Briggs points out, no rigid temporal prohibition on resort to travaux
preparatoires of a treaty was intended by the use of the phrase 'supplementary means of
interpretation' in what is now Article 32 of the Vienna Convention. The distinction between the
general rule of interpretation and the supplementary means of interpretation is intended rather
to ensure that the supplementary means do not constitute an alternative, autonomous method
of interpretation divorced from the general rule.10

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word
.'activities" arose from accident. In our view, it was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for
purposes other than military. As conceived, the joint exercises may include training on new techniques
of patrol and surveillance to protect the nation's marine resources, sea search-and-rescue operations to
assist vessels in distress, disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and training exercise," falls
under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the V FA support the conclusion that combat-
related activities -as opposed to combat itself -such as the one subject of the instant petition, are
indeed authorized.

That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the terms of
the VFA, what may US forces legitimately do in furtherance of their aim to provide advice, assistance
and training in the global effort against terrorism? Differently phrased, may American troops actually
engage in combat in Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of
section I stipulates that US exercise participants may not engage in combat "except in self-
defense." We wryly note that this sentiment is admirable in the abstract but difficult in implementation.
The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot reasonably be expected to sit idly while the
battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for
they will not have the luxury of doing so. We state this point if only to signify our awareness that the
parties straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod non
potest facere per directum."11 The indirect violation is actually petitioners' worry, that in reality,
"Balikatan 02-1 " is actually a war principally conducted by the United States government, and that the
provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear
pronouncement on this matter thereby becomes crucial.

In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an offensive
war on Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United
75

Nations, to wit:
Page

Article 2
 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles.

xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.

xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other
treaties and international agreements to which the Philippines is a party, must be read in the context of
the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before the present
Charter, though it nevertheless remains in effect as a valid source of international obligation. The
present Constitution contains key provisions useful in determining the extent to which foreign military
troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is
provided that:

xxx xxx xxx xxx

SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy
of peace, equality, justice, freedom, cooperation, and amity with all nations.

xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states
the paramount consideration shall be national sovereignty, territorial integrity, national interest,
and the right to self- determination.

SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of
freedom from nuclear weapons in the country.

xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that
"[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the members of the Senate."12 Even more pointedly, the Transitory Provisions state:

Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines
and the United States of America concerning Military Bases, foreign military bases, troops or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting state.

The aforequoted provisions betray a marked antipathy towards foreign military presence in the country,
or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by
way of direct exception. Conflict arises then between the fundamental law and our obligations arising
from international agreements.

A rather recent formulation of the relation of international law vis-a-vis municipal law was expressed
in Philip Morris, Inc. v. Court of Appeals,13 to wit:

xxx Withal, the fact that international law has been made part of the law of the land does not by
any means imply the primacy of international law over national law in the municipal sphere.
Under the doctrine of incorporation as applied in most countries, rules of international law are
given a standing equal, not superior, to national legislation.

This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors
neither one law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other
76

more traditional approaches may offer valuable insights.

Page
 From the perspective of public international law, a treaty is favored over municipal law pursuant to the
principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and
must be performed by them in good faith."14 Further, a party to a treaty is not allowed to "invoke the
provisions of its internal law as justification for its failure to perform a treaty." 15

Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5 of Article
VIII:

The Supreme Court shall have the following powers:

xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is
in question.

xxx xxx xxx xxx

In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the State. In Gonzales v.
Hechanova,17

xxx As regards the question whether an international agreement may be invalidated by our
courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the
affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be
deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or
writ of error as the law or the rules of court may provide, final judgments and decrees of inferior
courts in -( I) All cases in which the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulation is in question." In other words, our Constitution authorizes the
nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it
runs counter to an act of Congress.

The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive
war on Philippine territory.

Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino
soldiers under the guise of an alleged training and assistance exercise? Contrary to what petitioners
would have us do, we cannot take judicial notice of the events transpiring down south,18 as reported
from the saturation coverage of the media. As a rule, we do not take cognizance of newspaper or
electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for the
simple reason that facts must be established in accordance with the rules of evidence. As a result, we
cannot accept, in the absence of concrete proof, petitioners' allegation that the Arroyo government is
engaged in "doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign
troops on native soil. The petitions invite us to speculate on what is really happening in Mindanao, to
issue I make factual findings on matters well beyond our immediate perception, and this we are
understandably loath to do.

It is all too apparent that the determination thereof involves basically a question of fact. On this point,
we must concur with the Solicitor General that the present subject matter is not a fit topic for a special
civil action for certiorari. We have held in too many instances that questions of fact are not entertained
in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of
discretion: The phrase "grave abuse of discretion" has a precise meaning in law, denoting abuse of
discretion "too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to
perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary
and despotic manner by reason of passion and personal hostility."19

In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts. 20

Under the expanded concept of judicial power under the Constitution, courts are charged with the duty
77

"to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."21 From the facts obtaining,
Page

we find that the holding of "Balikatan 02-1" joint military exercise has not intruded into that penumbra of
 error that would otherwise call for correction on our part. In other words, respondents in the case at bar
have not committed grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to
the filing of a new petition sufficient in form and substance in the proper Regional Trial Court.

SO ORDERED.

Bellosillo, Melo, Mendoza, Quisumbing, Carpio, JJ., concur.

Kapunan, dissenting opinion.

Ynares-Santiago, join the dissenting opinion.

Panganiban, separate opinion.

Davide., Jr., C.J., Puno, Sandoval-Gutierrez, join the main and separate opinion of J. Panganiban.

Footnotes

1
For ready reference, the text of the treaty is reproduced herein:

"MUTUAL DEFENSE TREATY

BETWEEN THE REPUBLIC OF THE PHILIPPINES

AND THE UNITED STATES OF AMERICA

30 August 1951

"The parties to this Treaty,

'"Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to live in peace with all peoples and all Governments, and desiring to strengthen the
fabric of peace in the Pacific Area,

"Recalling with mutual pride the historic relationship which brought their two peoples together in
a common bond of sympathy and mutual ideals to fight side-by-side against imperialist
aggression during the last war,

"Desiring to declare publicly and formally their sense of unity and their common determination to
defend themselves against external armed attack, so that no potential aggressor could be under
the illusion that either of them stands alone in the Pacific Area,

"Desiring further to strengthen their present efforts for collective defense for the preservation of
peace and security pending the development of a more comprehensive system of regional
security in the Pacific Area,

"Agreeing that nothing in this present instrument shall be considered or interpreted as in any
way , or sense altering or diminishing any existing agreements or understandings between the
United States of America and the Republic of the Philippines,

"Have agreed as follows:

"ARTICLE I.

"The Parties undertake, as set forth in the Charter of the United Nations, to settle any
international disputes in which they may be involved by peaceful means in such a manner that
78

international peace and security and justice are not endangered and to refrain in their
international relations from the threat or use of force in any manner inconsistent with the
Page

purpose of the United Nations.

 "ARTICLE II.

"In order more effectively to achieve the objective of this Treaty, the Parties separately and
jointly by self-help and mutual aid will maintain and develop their individual and collective
capacity to resist armed attack.

"ARTICLE III.

"The Parties, through their Foreign Ministers or their deputies, will consult together from time to
time regarding the implementation of this Treaty and whenever in the opinion of either of them
the territorial integrity, political independence or security of either of the Parties is threatened by
external.'

I armed attack in the Pacific.

"ARTICLE IV.

"Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would
be dangerous to its own peace and safety and declares that it would act to meet the common
dangers in accordance with its constitutional processes.

" Any such armed attack and all measures taken as a result thereof shall be immediately
reported to the Security Council of the United Nations. Such measures shall be terminated when
the Security Council has taken the measures necessary to restore and maintain international
peace and security.

"ARTICLE V.

"For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an
attack on the metropolitan territory of either of the Parties, or on the island territories under its
jurisdiction in the Pacific or on its armed forces, public vessels or aircraft used in the Pacific.

"ARTICLE VI.

"This Treaty does not affect and shall not be interpreted as affecting in any way the rights and
obligations of the Parties under the Charter of the United Nations or the responsibility of the
United Nations for the maintenance of international peace and security.

"ARTICLE VII.

"This Treaty shall be ratified by the United States of America and the Republic of the Philippines
in accordance with their respective constitutional processes and will come into force when
instruments of ratification thereof have been exchanged by them at Manila.

"ARTICLE VIII.

"This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice
has been given to the other party.

"IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.

"DONE in duplicate at Washington this thirtieth day of August, 1951."

xxx xxx xxx xxx

2
The day before, the first petition in connection with the joint military enterprise was filed --G.R.
No.151433, entitled "In the Matter of Declaration as Constitutional and Legal the 'Balikatan' RP-
US Military Exercises." Petitioner therein Atty. Eduardo B. Inlayo manifested that he would be
perfectly "comfortable" should the Court merely "note" his petition. We did not oblige him; in a
Resolution dated February 12, 2002, we dismissed his petition on the grounds of insufficiency in
form and substance and lack of jurisdiction. After extending a hearty Valentine's greeting to the
Court en banc, Atty. Inlayo promised to laminate the aforesaid resolution as a testimonial of his
79

"once upon a time" participation in an issue of national consequence.

Page

3
Annex 1 of the Comment.
 4
Annex 2 of the Comment. The Minutes state:

"Secretary Guingona and Assistant Secretary Kelly welcomed the holding of Balikatan 02-1
exercise ('the Exercise") and the conclusion of the Terms of Reference for the Exercise.
Assistant Secretary Kelly thanked Secretary Guingona for Secretary Guingona's personal
approval of the Terms of Reference.

"Both Secretary Guingona and Assistant Secretary Kelly emphasized the importance of
cooperating, within the bounds provided for by their respective constitutions and laws, in the
fight against international terrorism.

"Both Secretary Guingona and Assistant Secretary Kelly expressed the belief that the Exercise
shall not in any way contribute to any escalation of other conflicts in Mindanao, shall not
adversely affect the progress of ongoing peace negotiations between the Government of the
Philippines and other parties, and shall not put at risk the friendly relations between the
Philippines and its neighbors as well as with other states. Secretary Guingona stated that he
had in mind the ongoing peace negotiations with the NDF and the MILF and he emphasized that
it is important to make sure that the Exercsie shall not in any way hinder those negotiations.

"Both Secretary Guingona and Assistant Secretary Kelly stated that they look forward to the
realization of the nearly US$100 million in security assistance for fiscal years 2001-2002 agreed
upon between H.E. President Gloria Macapagal-Arroyo and H.E. President George W. Bush
last November 2001.

"Secretary Guingona stated that the Philippines welcomes the assistance that the U.S. will be
providing, saying that while Filipino soldier does not lack experience, courage and
determination, they could benefit from additional knowledge and updated military technologies.

"Assistant Secretary Kelly said that he is glad the U.S. is able to provide advice, assistance and
training and reiterated the policy position expressed by H.E. President George W. Bush during
his State of the Nation Address that U.S. forces are in the Philippines to advise, assist and train
Philippine military forces.

"Both Secretary Guingona and Assistant Secretary Kelly reiterated that, as provided in the
Terms of Reference, U.S. Forces shall not engage in combat during the Exercise, except in
accordance with their right to act in self-defense.

Both Secretary Guingona and Assistant Secretary Kelly reiterated that, pursuant to Article II of
the Visiting Forces Agreement, U.S. forces are bound to respect the laws of the Philippines
during the Exercise.

"Both Secretary Guingona and Assistant Secretary Kelly recognized that, pursuant to Article VI
of the Visiting Forces Agreement, both the U.S. and Philippine Governments waive any and all
claims against the other for any deaths or injuries to their military and civilian personnel from the
Exercise.

"Secretary Guingona and Assistant Secretary Kelly designated Ambassador Minerva Falcon
and Charge d' Affaires, a.i. Robert Fitts to initial these minutes.

"Both Secretary Guingona and Assistant Secretary Kelly agreed to consult from time to time on
matters relating to the Exercise as well as on other matters."

Notwithstanding, in view of the paramount importance and the constitutional significance

of the issues raised in the petitions, this Court, in the exercise of its sound discretion,
brushes aside the procedural barrier and takes cognizance of the petitions, as we have
done in the early Emergency Powers Cases, where we had occasion to rule:

5
338 SCRA 81, 100-101 (2000).

'x x x ordinary citizens and taxpayers were allowed to question the

constitutionality of several executive orders issued by President Quirino although
they were involving only an indirect and general interest shared in common with
80

the public. The Court dismissed the objection that they were not proper parties
and ruled that 'transcendental importance to the public of these cases demands
Page

that they be settled promptly and definitely, brushing aside, if we must,

 technicalities of procedure. ' We have since then applied the exception in many
other cases. [ citation omitted]

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

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

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in
cases of i transcendental importance, the Court may relax the standing requirements
and allow a suit to prosper even , where there is no direct injury to the party claiming the
right of judicial review.

Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation, of powers, which enjoins upon the departments of the
government a becoming respect for each others' acts, this Court nevertheless resolves
to take cognizance of the instant petitions.6

6 BAYAN, et. al. Y. Zamora, 342 SCRA 449 (2000).

7
BAYAN, et. al. v. Zamora, et. al., 342 SCRA 449 (2000).

8
Article I [Definitions], VFA.

9
Article II [Respect for Law], VFA.

10
l.M. SINCLA1R, THE VIENNA CONVENTION ON THE LAW OF TREATIES 71-72 (1973).

II
"No one is allowed to do indirectly what he is prohibited to do directly." 12 Sec. . 12 SEC.21,
Art. VII.

13
224 SCRA 576, 593 (1993).

14
Vienna Convention on the Law of Treaties, art. 26.

15
Id, art. 27. However, this is without prejudice to the provisions of art. 46 of the Convention,
which provides:

"1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed
in violation of a provision of its internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.

"2. A violation is manifest if it would be objectively evident to any State conducting itself in the
manner in accordance with normal practice and in good faith."

16
101 Phil. 1155, 1191 (1957).

17
9 SCRA 230,242 (1963).

18
Pertinent sections of Rule 129 provide: "SECTION I. Judicial notice, when mandatory.-A court
shall take judicial notice, without the introduction of evidence, of the existence and territorial
extent of states, their political history , forms of government and symbols of nationality, the law
of nations, the admiralty and maritime courts of the world and their seals, the political
constitution and history of the Philippines, the official acts of the legislative, executive and
judicial departments of the Philippines, the laws of nature, the measure of time, and the
81

geographical divisions." Likewise, it is also provided in the next succeeding section: "SEC.
2. Judicial notice, when discretionary.-A court may take judicial notice of matters which are of
Page
 public knowledge, or are capable of unquestionable demonstration, or ought to be known to
judges because of their judicial functions."

19
Sanchez v. National Labor Relations Commission, 312 SCRA 727 ( 1999).

20
Hervas v. Court of Appeals, 319 SCRA 776 (1999); Valmonte v. Court of Appeals, 303 SCRA
278 ( 1999). 1âwphi1.nêt

21
Article VIII, section 1.

The Lawphil Project - Arellano Law Foundation

EN BANC

G.R. No. 151445 April 11, 2002

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners,

vs.
HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY PRESIDENT GLORIA
MACAPAGAL-ARROYO and HONORABLE ANGELO REYES in his official capacity as Secretary
of National Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, intervenors.

DISSENTING OPINION

KAPUNAN, J.:

On September 11, 2001, terrorists, with the use of hijacked commercial airplanes, attacked the World
Trade Center Building in New York City and the Pentagon Building in Washington D.C., U.S.A., killing
thousands of people.

Following the attacks, the United States declared a "global war" against terrorism and started to bomb
and attack Afghanistan to topple the Taliban regime and capture Osama bin Laden, the suspected
mastermind of the September 11, 2001 attacks. With the Northern Alliance mainly providing the ground
forces, the Taliban regime fell in a few months, without Osama bin Laden having been captured. He is
believed either to be still in Afghanistan or has crossed the border into Pakistan.

In line with President Gloria Macapagal-Arroyo's pledge to render all-out aid to the US in its campaign
against "global terrorism," an arrangement for a. joint military exercises known as "RP-US Balikatan 02-
1 Exercises" was entered into between the US and Philippine authorities, allegedly within the ambit of
the Visiting Forces Agreement (V FA) with the main objective of enhancing the operational capabilities
of the countries in combating terrorism. The US government has identified the Abu Sayyaf Group
(ASG) in the Philippines as a terrorist group forming part of a "terrorist underground" linked to the al-
Qaeda network of Osama bin Laden.

Beginning January 21, 2002, American troops started arriving in Mindanao as part of the total
contingent force of 660 soldiers, 160 to be stationed in Basilan, 200 to 250 in Zamboanga, and 250 in
the Air Force base in Mactan, Cebu.

The salient features of the joint military exercises as embodied in the Terms of Reference (TOR) are
summarized as follows:
82

(a) The exercise shall be consistent with the Constitution and other Philippine laws, particularly
the RP-US Visiting Forces Agreement;
Page
 (b) No permanent US bases and support facilities will be established;

(c) The exercise shall be implemented jointly by RP and US Exercise Co-Directors under the
direction of the Chief of Staff of the AFP and in no instance will US Forces operate
independently during field training exercises;

(d) It shall be conducted and completed within a period of not more than six months, with the
projected participation of 660 US personnel and 3,800 RP forces, and the Chief of Staff of the
AFP shall direct the Exercise Co-Directors to wind up the Exercise and other activities and the
withdrawal of US forces within the six-month period;

(e) The exercise "is a mutual counter-terrorism advising, assisting and training exercise" relative
to Philippine efforts against the Abu Sayyaf Group and will be conducted on the Island of
Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay and
the Zamboanga area. Related activities in Cebu will also be conducted in support of the
Exercise;

(f) Only 160 US troops organized in 12-man Special Forces Teams shall be deployed in Basilan,
with the US Team remaining at the Company Tactical Headquarters where they can observe
and assess the performance of the troops; and

(g) US exercise participants shall not engage in combat, without prejudice to their right to self-
defense.

Petitioners now seek the issuance of a writ of prohibition/injunction to prevent US troops from
participating in areas of armed conflict on the ground that such is in gross violation of the Constitution.
They argue that:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY
(MDT) IN 1951 TO PROVIDE MUTUAL MILITARY ASSISTANCE IN ACCORDANCE WITH
THE CONSTITUTIONAL PROCESSES" OF EACH COUNTRY ONLY IN THE CASE OF AN
ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY
AGAINST ONE OF THEM.

BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF

BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS
SUBJECTED THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT US
MILITARY ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZED AMERICAN SOLDIERS TO ENGAGE IN

COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED
UPON."

Sanlakas and Partido ng Manggagawa as intervenors seek the same relief as petitioners, stressing that
the Constitution prohibits the presence of foreign military troops or facilities in the country, except under
a treaty duly concurred in by the Senate and recognized as a treaty by the other state.

The petition is impressed with merit.

There is no treaty allowing

US troops to engage in combat.

The Constitution prohibits foreign military bases, troops or facilities unless a treaty permits the same.
Section 25, Article XVIII of the Constitution provides:

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate
83

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
Page

State.
 There is no treaty allowing foreign military troops to engage in combat with internal elements.

The Mutual Defense Treaty (MDT) between the Republic of the Philippines and the United States of
America does not authorize US military troops to engage the ASG in combat. The MDT contemplates
only an "external armed attack." Article III of the treaty cannot be more explicit:

The Parties, through their Foreign Ministers or their deputies, will consult together from time to
time regarding the implementation of this treaty and whenever in the opinion of either of them
the territorial integrity, political independence or security of either of the Parties is threatened
by external armed attack in the Pacific. [Emphasis supplied.]

Supporting this conclusion is the third paragraph of the MDT preamble where the parties express their
desire

to declare publicly and formally their sense of unity and their common determination to defend
themselves against external armed attack, so that no potential aggressor could be under the
illusion that either of them stands alone in the Pacific area. [Emphasis supplied.]

There is no evidence that

the ASG is connected with
"global terrorism."

There is no empirical basis for the allegation that the "terrorism" which the ASG is accused of
constitutes an "external armed attack." The ASG has committed mostly crimes of kidnapping for
ransom and murder - common crimes that are punishable under the penal code but which, by
themselves, hardly constitute "terrorism."

Parenthetically, there is lack of agreement as to the precise definition of terrorism. Indeed, one man's
terrorist may be another man's freedom fighter. The divergent interests of States have caused
contradicting definitions and conflicting perceptions of what constitutes "terrorist acts" that make it
difficult for the United Nations to reach a decision on the definition of terrorism. Because of this
"definitional predicament," the power of definition is easily exercised by a superpower which, by
reason of its unchallenged hegemony, could draw lists of what it considers terrorist organizations or
states sponsoring terrorism based on criteria determined by the hegemon's own strategic interests. 1

In any case, ties between the ASG and so-called international "terrorist" organizations have not been
established.2 Even assuming that such ties do exist, it does not necessarily make the "attacks" by the
ASG "external" as to fall within the ambit of the MDT.

Balikatan exercises are

not covered by VFA as
US troops are not
allowed to engage in combat.

Neither is the present situation covered by the so-called Visiting Forces Agreement (VFA). The V FA
was concluded after the removal of the US military bases, troops and facilities in the aftermath of the
termination of the treaty allowing the presence of American military bases in the Philippines. The VF A
is nothing more than what its formal name suggests: an "Agreement between the Government of the
Republic of the Philippines and the Government of the United States of America regarding
the Treatment of United States Armed Forces Visiting the Philippines. "The last paragraph of the V FA
preamble also "recogniz[es] the desirability of defining the treatment of United States personnel
visiting the Republic of the Philippines."

The VFA was entered into to enable American troops to enter the country again after the removal of the
American military bases so they can participate in military exercises under the auspices of the Mutual
Defense Treaty. It provided the legal framework under which American soldiers will be treated while
they remain in the country.

The military exercises contemplated in the VFA are those in accordance with the National Defense Plan
(NDP) of the Philippines. The NDP was previously approved and adopted by the Mutual Defense
Board, jointly chaired by the Chief of Staff of the Armed Forces of the Philippines and the Commander
in the Pacific of the United States Armed Forces.
84
Page
 The NDP is directed against potential foreign aggressors, not designed to deal with internal disorders.
This was what the Senate understood when it ratified the VFA in Senate Resolution No. 18, which
reads:

The VFA shall serve as the legal mechanism to promote defense cooperation between the two
countries, enhancing the preparedness of the Armed Forces of the Philippines against external
threats; and enabling the Philippines to bolster the stability of the Pacific Area in a shared effort
with its neighbor states.

The VFA's ambiguous reference to "activities"3 is not a loophole that legitimizes the presence of US
troops in Basilan. In the treaty's preamble, the parties "reaffirm their obligations under the Mutual
Defense Treaty of August 30, 1951." As the preamble comprises part of a treaty's context for the
purpose of interpretation, the VFA must be read in light of the provisions of the MDT. As stated earlier,
the MDT contemplates only an external armed attack; consequently, the "activities" referred to in the V
FA cannot thus be interpreted to include armed confrontation with or suppression of the ASG members
who appear to be mere local bandits, mainly engaged in kidnapping for ransom and murder -even
arson, extortion and illegal possession of firearms, all of which are common offenses under our criminal
laws. These activities involve purely police matters and domestic law and order problems; they are
hardly "external" attacks within the contemplation of the MDT and the V FA. To construe the vagueness
of the term "activities" in the V FA as authorizing American troops to confront the ASG in armed conflict
would, therefore, contravene both spirit and letter of the MDT.

Respondents maintain that the American troops are not here to fight the ASG but merely to engage in
"training exercises." To allay fears that the American troops are here to engage the ASG in combat, the
TOR professes that the present exercise "is a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan."
The TOR further provides that the "exercise" shall involve the conduct of "mutual
military assisting, advising and training of RP and US Forces with the primary objective of enhancing
the operational capabilities of both forces to combat terrorism."

These avowals of assistance, advice, and training, however, fly in the face of the presence of US troops
in the heart of the ASG's stronghold. Such presence is an act of provocation that makes an armed
confrontation between US soldiers and ASG members inevitable.

The US troops in Basilan have been described as being "on a slippery slope between training and
fighting." Their very presence makes them a target for terrorist and for the local Moslem populace,
which has been bitterly anti-American since colonial times. Though they are called advisers, the
Americans win be going on risky missions deep into the jungle. A former Green Beret who is an analyst
of Washington's Center for Strategies and Budgetary Assessments notes that "when troops go out on
patrol, they come as close as they can to direct combat."4

"Advising" or "training" Filipino soldiers hardly describes the involvement of US troops (unaccompanied
by Filipino counterparts) on board combat helicopters which land on the battlegrounds to evacuate
Filipino soldiers wounded while fighting the ASG. For example, on April 5,2002, US troops on board a
Pave Hawk helicopter flew to the scene of a night battle on Basilan Island to evacuate a wounded
Filipino soldier. This was reportedly the third time in recent weeks that chopper-borne US forces had
evacuated Filipino soldiers fighting the ASG.5

Whatever euphemisms may be conjured to characterize American involvement, the RP-US

Balikatan 02-1 Exercises are aimed at seeking out the ASG and exterminating it.

The prohibition contained in the TOR against US exercise participants from engaging in combat but
"without prejudice to their right to self- defense" provides little consolation. Combat muddles the
distinction between aggression and self-defense. US troops can always say they did not fire first and no
one would dare say otherwise. The ASG has been so demonized that no one cares how it is exorcised.
Significantly, the TOR does not define the parameters of "self-defense." Militarily, a pre-emptive strike
could be interpreted as an act of self -defense.

What I fear most is that the country would be dragged into a more devastating and protracted conflict
as a result of the continued presence of US military troops in Basilan. A single ASG sniper's bullet
felling an American soldier could be used as an excuse for massive retaliation by US ground and air
forces to attack and bomb out every suspected ASG lair, all in the name of "self -defense.
85

Apprehensions over possible catastrophic consequence of US military involvement in our country are
not without historical basis.
Page
 The US experience in Vietnam, for example, began as an expression of support for the establishment
of South Vietnam under Bao Dai's leadership in 1949 to. counteract the support given by communist
China and the Soviet Union to North Vietnam. In 1950, the US began providing military assistance in
fighting North Vietnam by sending military advisors as well as US tanks, planes, artillery and other
supplies. The US became more involved in the Vietnam conflict when in 1961, it sent the first 400
Green Beret "Special Advisors" to South Vietnam to train the latter's soldiers in methods of counter-
insurgency against the Viet Cong guerillas. It clarified that the American soldiers were not in
Vietnam to engage in combat.6

However, due to the increased success of the Viet Cong guerillas, assisted by the Northern
Vietnamese Army, the US eventually began to run covert operations using South Vietnamese
commandos in speed boats to harass radar sites along the coastline of North Vietnam. In 1964, after an
alleged torpedo attack by North Vietnam of the American destroyers USS. Maddox and USS. C. Turner
Joy in the Gulf of Tonkin, the US decided to retaliate by conducting bombing raids in North Vietnam. 7

The Vietnam War resulted in the death of two million Vietnamese and injuries to three million others.
Twelve million Vietnamese became refugees and thousands of children became orphaned. 8 Millions of
acres of Vietnam's forests were defoliated by a herbicide called Agent Orange, dropped from the air.
Millions of mines and unexploded bombs and artillery shells are still scattered in the countryside, posing
constant danger to life and limb.

US militarv presence is
essentially indefinite
and open-ended.

Already, there are indications that the US intends to reestablish a more enduring presence in
the country. Defense Secretary Angelo Reyes was quoted to have declared on March 20, 2002 that
2,665 US soldiers will take part in the RP-US Balikatan 02-2 starting next month in Central Luzon and
that 10 more military exercises will be held this year.9 How many more war exercises are needed for
"training and advising" Filipino soldiers? What conditions must be satisfied for the United States to
consider the "war against terrorism" in Mindanao terminated? The endless frequency and successive
repetition of the war exercises covering the two largest islands of the country amount, in a real sense,
to the permanent presence of foreign military troops here sans a treaty in blatant violation of the
constitutional proscription.

US President George w. Bush in his January 30, 2002 speech declared:

The men and women of our armed-forces have delivered a message to every enemy of the
United States. You shall not escape the justice of this nation. x x x.

Should any country be timid in the face of terror, if they do not act, America will.

President Arroyo, in a speech at the Regis Hotel in New York City on February 1, 2002, pledged her
"full support" to US President George W. Bush in the fight against international terrorism. She declared
that "the Philippines will continue to be a partner of the United States in the war to end terrorism" and
that "(t)he anti-terrorism partnership will continue after the whole world is secure against the terrorist." 10

In his speech on the White House Laws on March 11, 2002, President Bush exhorted:

America encourages and expects governments everywhere to help remove the terrorist
parasites that threaten their own countries and the peace of the world. x x x. We are helping
right now in the Philippines, where terrorist with links to Al Qaeda are trying to seize the
southern part of the country to establish a military regime.

They are oppressing local peoples, and have kidnapped both American and Filipino citizens."11

The Philippine Daily Inquirer in its March 17, 2002 issue carried the following report:

The United States wants to bring in more troops for the controversial Balikatan 02-1 training
exercise aimed at wiping out the Abu Sayyaf bandits in Basilan.

The US military last week began calling the war-games "Operation Enduring Freedom-
86

Philippines," giving credence to claims that the country has become, after Afghanistan, the
second front of the US-led global war on terrorism.
Page
 Today's issue of April 1, 2002 reporting as its source New York News Service, quoted a senior Bush
administration official as saying:

We are looking at prolonged training. x x x. It takes more to build up capabilities than saying
here are some night vision goggles.

The declarations of the two Presidents on the war against terrorism and their avowal to secure the
world against the terrorists would ineluctably suggest a long-drawn conflict without a foreseeable
end. Worse, it is not unlikely that this war could expand and escalate to include as protagonists
the Moro Islamic Liberation Front and the Moro National Liberation Front and -not improbably -
the National People's Army, all lumped-up as "terrorists" in a unilateral characterization.

No less than US Deputy Defense Secretary Paul Wolfowitz declared that the proposed $48-billion
increase to the US defense budget for 2003 is intended to sustain the war on terrorism,12 including that
fought in this country, thus: .

Deputy Defense Secretary Paul Wolfowitz on Wednesday said the Pentagon needs a big
budget increase next year on terrorism, which has expanded from Afghanistan to the Philippines
and now appears to be moving to Georgia.13

The Court can take judicial notice of the foregoing pronouncements as they are of public
knowledge,14 having been widely circulated in all channels of the media. Neither have they been
denied.

US military intervention
is not the solution to the
Mindanao problem.

Assuming that the ASG is a terrorist organization, U.S. military intervention is not the solution to
achieve peace. The annihilation of the rebel bandits would be a futile quest so long at the root causes
of their criminality are not addressed. A study15 by the United Nations Secretariat, however,
acknowledges that international terrorism springs from "misery, frustration, grievance and 'despair,"
elements which, many believe, are present in Basilan. Two veteran Philippine journalists have
described the province as Mindanao's "war laboratory," where lawlessness, government neglect,
religious strife, poverty, and power struggle are rampant.16

If indeed acts of terrorism are cries of desperation, if terrorism is but a symptom of the greater maladies
of "misery, frustration, grievance and despair," then it cannot be remedied alone by ASG's physical
extermination, which appears to be the object of President Bush and President Macapagal- Arroyo's
joint campaign against global terrorism." Admittedly, the State has the right to use force as a means of
self-preservation. But perhaps we should all consider that a military solution is but a first-aid measure,
not the prescription to these diseases. It has been opined that:

The issue of terrorism in the Philippines should be dealt with not from the perspective of Manila-
Washington ties but from a serious study of how terrorism figures in the minds of leaders and
armed men belonging to the large but deeply factionalized guerrilla movements in the country.
Terrorism can never be dissociated from guerrilla warfare and the separatist movement in
Mindanao. From these movements would arise religious extremists or millennarian groups. With
the right resources and the right agenda, these movements will continue to attract men-skilled,
intelligent, and experienced-who will come to grasp the practical realities of waging a war with
the minimum of resources but maximum public impact.

The government does not have to look for foreign connections-and be motivated by the desire
to help foreign friends to address a problem that has been and will be the making of its own
home grown armies.17

The presence of US troops in Basilan, whether from the legal, philosophical-or even from the practical
perspective cannot be justified, On the contrary, it is counterproductive. It serves to fuel an already
volatile situation. US troops are likely less able, if not less willing, to distinguish between the innocent
and the enemy. The inevitable "collateral damage," the killing of women and children, Muslims and
Christians, the destruction of homes, schools and hospitals would fan the flames of fanaticism and
transform mere rogues into martyrs.
87

The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field of battle
Page

as shown in Bataan and Corregidor, in the four long years of guerilla warfare thereafter against the
 Japanese, and in the struggle for independence against Spain and the United States at the turn of the
last century. The local army and police have successfully battled in the past against Communist and
other insurgents which were more organized and numerous, operating in larger parts of the country and
fighting for their political beliefs. If our troops need training by us advisers or have to conduct joint
exercises with US troops to improve their fighting capability, these could be more effectively achieved if
done outside Basilan or away from the danger zones. Instead of bringing troops to the combat zones,
the US can do more by supplying our soldiers with modern and high tech weaponry.

Prescinding from the foregoing disquisitions, it is totally erroneous to argue that petitioners do not have
legal standing or that the issues raised by them are premature and not based on sufficient facts. The
issues raised are of transcendental importance.18 The Balikatan exercises pose direct injury to some of
the petitioners (intervenors) who live in the affected areas. The presence of us troops in the combat
zones "assisting" and "advising" our troops in combat against the ASG is a blatant violation of the
Constitutional proscription against the stationing of foreign troops to fight a local insurgency and puts
the country in peril of becoming a veritable killing field. If the time is not ripe to challenge the continuing
affront against the Constitution and the safety of the people, when is the right time? When the
countryside has been devastated and numerous lives lost?

I therefore vote to give due course to the petition.

G.R. No. 158088 July 6, 2005

SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE
ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF
THE PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA
HACINTHA R. ROQUE, HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P.
SALO,* LEAVIDES G. DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE
CEMBRANO, LIZA ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL
FAGELA, and ROMEL BAGARES, Petitioners,
vs.
OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT
OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE, Respondents.

DECISION

PUNO J.:

This is a petition for mandamus filed by petitioners to compel the

Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of
the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence
in accordance with Section 21, Article VII of the 1987 Constitution.

The Rome Statute established the International Criminal Court which "shall have the power to exercise
its jurisdiction over persons for the most serious crimes of international concern xxx and shall be
complementary to the national criminal jurisdictions."1 Its jurisdiction covers the crime of genocide,
crimes against humanity, war crimes and the crime of aggression as defined in the Statute. 2 The
Statute was opened for signature by all states in Rome on July 17, 1998 and had remained open for
signature until December 31, 2000 at the United Nations Headquarters in New York. The Philippines
signed the Statute on December 28, 2000 through Charge d’ Affairs Enrique A. Manalo of the Philippine
Mission to the United Nations.3 Its provisions, however, require that it be subject to ratification,
acceptance or approval of the signatory states.4

Petitioners filed the instant petition to compel the respondents — the Office of the Executive Secretary
and the Department of Foreign Affairs — to transmit the signed text of the treaty to the Senate of the
Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and international
law, is a function of the Senate. Hence, it is the duty of the executive department to transmit the signed
copy of the Rome Statute to the Senate to allow it to exercise its discretion with respect to ratification of
treaties. Moreover, petitioners submit that the Philippines has a ministerial duty to ratify the Rome
Statute under treaty law and customary international law. Petitioners invoke the Vienna Convention on
the Law of Treaties enjoining the states to refrain from acts which would defeat the object and purpose
of a treaty when they have signed the treaty prior to ratification unless they have made their intention
88

clear not to become parties to the treaty.5

Page
 The Office of the Solicitor General, commenting for the respondents, questioned the standing of the
petitioners to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy
of courts. On the substantive issue raised by petitioners, respondents argue that the executive
department has no duty to transmit the Rome Statute to the Senate for concurrence.

A petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office,
trust, or station.6 We have held that to be given due course, a petition for mandamus must have been
instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person
which unlawfully excludes said party from the enjoyment of a legal right. The petitioner in every case
must therefore be an aggrieved party in the sense that he possesses a clear legal right to be enforced
and a direct interest in the duty or act to be performed.7 The Court will exercise its power of judicial
review only if the case is brought before it by a party who has the legal standing to raise the
constitutional or legal question. "Legal standing" means a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the government act that is
being challenged. The term "interest" is material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental interest. 8

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the
suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of
Representatives and Chairperson of its Committee on Human Rights; the Philippine Coalition for the
Establishment of the International Criminal Court which is composed of individuals and corporate
entities dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees of the
Philippines, a juridical entity with the avowed purpose of promoting the cause of human rights and
human rights victims in the country; the Families of Victims of Involuntary Disappearances, a juridical
entity duly organized and existing pursuant to Philippine Laws with the avowed purpose of promoting
the cause of families and victims of human rights violations in the country; Bianca Hacintha Roque and
Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the instant petition,
and suing under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran,
Jr.;9 and a group of fifth year working law students from the University of the Philippines College of Law
who are suing as taxpayers.

The question in standing is whether a party has alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions. 10

We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit.
The other petitioners maintain their standing as advocates and defenders of human rights, and as
citizens of the country. They have not shown, however, that they have sustained or will sustain a direct
injury from the non-transmittal of the signed text of the Rome Statute to the Senate. Their contention
that they will be deprived of their remedies for the protection and enforcement of their rights does not
persuade. The Rome Statute is intended to complement national criminal laws and courts. Sufficient
remedies are available under our national laws to protect our citizens against human rights violations
and petitioners can always seek redress for any abuse in our domestic courts.

As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are impaired,
so is the power of each member thereof, since his office confers a right to participate in the exercise of
the powers of that institution."11 Thus, legislators have the standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in their office and are allowed to sue to
question the validity of any official action which they claim infringes their prerogatives as legislators.
The petition at bar invokes the power of the Senate to grant or withhold its concurrence to a treaty
entered into by the executive branch, in this case, the Rome Statute. The petition seeks to order the
executive branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority.
Senator Pimentel, as member of the institution, certainly has the legal standing to assert such authority
of the Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive Secretary and the Department of
Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed
by a member of the Philippine Mission to the United Nations even without the signature of the
President.
89

We rule in the negative.

Page
 In our system of government, the President, being the head of state, is regarded as the sole organ and
authority in external relations and is the country’s sole representative with foreign nations.12 As the chief
architect of foreign policy, the President acts as the country’s mouthpiece with respect to international
affairs. Hence, the President is vested with the authority to deal with foreign states and governments,
extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact
the business of foreign relations.13 In the realm of treaty-making, the President has the sole authority to
negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by him. Section 21, Article VII of the 1987
Constitution provides that "no treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate." The 1935 and the 1973
Constitution also required the concurrence by the legislature to the treaties entered into by the
executive. Section 10 (7), Article VII of the 1935 Constitution provided:

Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members
of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective
unless concurred in by a majority of all the Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed essential to
provide a check on the executive in the field of foreign relations.14 By requiring the concurrence of the
legislature in the treaties entered into by the President, the Constitution ensures a healthy system of
checks and balance necessary in the nation’s pursuit of political maturity and growth.15

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that
the power to ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:

The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of
the instruments of ratification. The treaty may then be submitted for registration and publication under
the U.N. Charter, although this step is not essential to the validity of the agreement as between the
parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers,
which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice
for one of the parties to submit a draft of the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or
protracted, depending on the issues involved, and may even "collapse" in case the parties are unable
to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature.
This step is primarily intended as a means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of
the state in cases where ratification of the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy
which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the
contracting states to examine the treaty more closely and to give them an opportunity to refuse
to be bound by it should they find it inimical to their interests. It is for this reason that most
treaties are made subject to the scrutiny and consent of a department of the government other
than that which negotiated them.
90

xxx
Page
 The last step in the treaty-making process is the exchange of the instruments of ratification, which
usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the
parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.16 [emphasis supplied]

Petitioners’ arguments equate the signing of the treaty by the Philippine representative with ratification.
It should be underscored that the signing of the treaty and the ratification are two separate and distinct
steps in the treaty-making process. As earlier discussed, the signature is primarily intended as a means
of authenticating the instrument and as a symbol of the good faith of the parties. It is usually performed
by the state’s authorized representative in the diplomatic mission. Ratification, on the other hand, is the
formal act by which a state confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act, undertaken by the head of the state or of the
government.17 Thus, Executive Order No. 459 issued by President Fidel V. Ramos on November 25,
1997 provides the guidelines in the negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine representative, the same shall be
transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare
the ratification papers and forward the signed copy of the treaty to the President for ratification. After
the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the
Senate for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign
Affairs shall comply with the provisions of the treaty to render it effective. Section 7 of Executive Order
No. 459 reads:

Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement.
— The domestic requirements for the entry into force of a treaty or an executive agreement, or any
amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing
for the preparation of the ratification papers. The transmittal shall include the highlights of the
agreements and the benefits which will accrue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall
transmit the agreements to the President of the Philippines for his ratification. The original signed
instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate
action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-
paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of
Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the
ratification by the President. A certified true copy of the treaties, in such numbers as may be required
by the Senate, together with a certified true copy of the ratification instrument, shall accompany the
submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with
the provision of the treaties in effecting their entry into force.

Petitioners’ submission that the Philippines is bound under treaty law and international law to ratify the
treaty which it has signed is without basis. The signature does not signify the final consent of the state
to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute
itself requires that the signature of the representatives of the states be subject to ratification,
acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty
are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state
expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the
state’s representative, the President, being accountable to the people, is burdened with the
responsibility and the duty to carefully study the contents of the treaty and ensure that they are not
inimical to the interest of the state and its people. Thus, the President has the discretion even after the
signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna
Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the
head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It
has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by
91

its plenipotentiaries.18 There is no legal obligation to ratify a treaty, but it goes without saying that the
refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise,
Page

the other state would be justified in taking offense.19

 It should be emphasized that under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification.20 Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it.21 Although the refusal of a state to ratify a treaty which has been signed in its behalf is
a serious step that should not be taken lightly,22 such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no
jurisdiction over actions seeking to enjoin the President in the performance of his official duties. 23 The
Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the signed text of Rome
Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.

REYNATO S. PUNO

Associate Justice

WE CONCUR:

G.R. No. 167919 February 14, 2007

PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) and PMA ’59

FOUNDATION, INC., rep. by its President, COMMODORE CARLOS L. AGUSTIN
(retired), Petitioners,
vs.
HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the
DEPARTMENT OF PUBLIC WORKS and HIGHWAYS, HON. SECRETARY EMILIA T. BONCODIN,
in her capacity as Secretary of the DEPARTMENT OF BUDGET and MANAGEMENT, HON.
SECRETARY CESAR V. PURISIMA, in his capacity as Secretary of the DEPARTMENT OF
FINANCE, HON. TREASURER NORMA L. LASALA, in her capacity as Treasurer of the Bureau of
Treasury, and CHINA ROAD and BRIDGE CORPORATION, Respondents.

DECISION

CALLEJO, SR., J.:

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

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

Background

Based on the Exchange of Notes dated December 27, 1999,1 the Government of Japan and the
Government of the Philippines, through their respective representatives, namely, Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines, and then
Secretary of Foreign Affairs Domingo L. Siazon, have reached an understanding concerning Japanese
loans to be extended to the Philippines. These loans were aimed at promoting our country’s economic
92

stabilization and development efforts.

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

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

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

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

...

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

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

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

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

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

x x x x2 1awphi1.net

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

LIST A

Maximum amount in million yen)

1. Secondary Education Development and Improvement Project 7,210

2. Rural Water Supply Project (Phase V) 951

93

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

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

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

6. Cordillera Road Improvement Project 5,852

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

7,434

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

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

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

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

Total 79,8613

The Exchange of Notes further provided that:

III

xxxx

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

x x x x4

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

xxxx

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

(1) such requirement of local currency as general administrative expenses, interest during
construction, taxes and duties, expenses concerning office, remuneration to employees of the
executing agencies and housing, not directly related to the implementation of the said projects,
as well as purchase of land properties, compensation and the like, however, will not be
considered as eligible for financing under the Loan I; and

(2) the procurement of products and/or services will be made in accordance with the procedures
of international competitive tendering except where such procedures are inapplicable and
inappropriate.

x x x x5

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

Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR
INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES.
94

In the light of the contents of the Exchange of Notes between the Government of Japan and the
Page

Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese loans
 to be extended with a view to promoting the economic stabilization and development efforts of the
Republic of the Philippines.

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

x x x x6

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

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

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

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

CP II: Viga-Bagamanoc Road - 10.40 kms.

CP III: Bagamanoc-Pandan Road - 47.50 kms.

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

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

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

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

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

Original Bid As Read As-Corrected Bid Amount

Name of Bidder Variance
(Pesos) (Pesos)
1) China Road And
₱ 993,183,904.98 ₱952,564,821.71 28.95%
95

Bridge Corporation
Page
 2) Cavite Ideal Int’l Const.
₱1,099,926,598.11 ₱1,099,926,598.11 48.90%
Devt. Corp.
3) Italian Thai Dev’t.
₱1,125,022,075.34 ₱1,125,392,475.36 52.35%
Public Company, Ltd.

The bid of private respondent China Road & Bridge Corporation was corrected from the original
₱993,183,904.98 (with variance of 34.45% from the ABC) to ₱952,564,821.71 (with variance of 28.95%
from the ABC) based on their letter clarification dated April 21, 2004.14

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

In accordance with the Guidelines for the Procurements under ODA [Official Development Assistance]
Loans, the Consultant hereby recommends the award of the contract for the construction of CP I, San
Andres (Codon) – Virac – Jct. Bato – Viga Section under the Arterial Road Links Development Projects,
Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying Bidder, China Road and Bridge
Corporation, at its total corrected bid amount of Nine Hundred Fifty-Two Million Five Hundred Sixty-
Four Thousand Eight Hundred Twenty-One & 71/100 Pesos.15

The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the assailed
Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the award in favor of private
respondent China Road & Bridge Corporation of the contract for the implementation of civil works for
CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Road (Catanduanes Circumferential Road
Improvement Project) of the Arterial Roads Links Development Project, Phase IV, located in
Catanduanes Province, under JBIC Loan Agreement No. PH-P204.16 On September 29, 2004, a
Contract of Agreement was entered into by and between the DPWH and private respondent China
Road & Bridge Corporation for the implementation of the CP I project.

The Parties

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

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

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

The Petitioners’ Case

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

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

96

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

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

III. Whether or not the Contract Agreement executed by and between the Republic of the
Philippines, through the Department of Public Works and Highways, and the China Road &
Bridge Corporation, for the implementation of civil works for CPI, San Andres (CODON)-VIRAC-
JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT
PROJECT) of the Arterial Road Links Development Project, Phase IV, located in Catanduanes
Province, under JBIC L/A No. PH-P204, is void ab initio.

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

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

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

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

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

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

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

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

SEC. 5. Definition of Terms. –

xxx

(a) Approved Budget for the Contract (ABC). – refers to the budget for the contract duly approved by
the Head of the Procuring Entity, as provided for in the General Appropriations Act and/or continuing
appropriations, in the case of National Government Agencies; the Corporate Budget for the contract
approved by the governing Boards, pursuant to E.O. No. 518, series of 1979, in the case of
Government-Owned and/or Controlled Corporations, Government Financial Institutions and State
Universities and Colleges; and the Budget for the contract approved by the respective Sanggunian, in
97

the case of Local Government Units.

Page
 xxx

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

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

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

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

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

(2) Those which are absolutely simulated or fictitious;

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

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

(5) Those which contemplate an impossible service;

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

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

For violating the above provision, the contract between the DPWH and private respondent China Road
& Bridge Corporation is allegedly inexistent and void ab initio and can produce no effects whatsoever.

It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-funded
procurement contracts. They cite the following excerpt of the deliberations of the Bicameral Conference
Committee on the Disagreeing Provisions of Senate Bill No. 2248 and House Bill No. 4809:20

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

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

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

THE CHAIRMAN (SEN. ANGARA). Okay.

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

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

xxx xxx xxx

THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic ‘yan eh. Now,
98

just for the record Del, can you repeat again the justification for including foreign funded contracts
Page

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

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

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

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

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

The Respondents’ Counter-Arguments

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

According to the public respondents, a taxpayer’s locus standi was recognized in the following cases:
(a) where a tax measure is assailed as unconstitutional;26 (b) where there is a question of validity of
election laws;27 (c) where legislators questioned the validity of any official action upon the claim that it
infringes on their prerogatives as legislators;28 (d) where there is a claim of illegal disbursement or
99

wastage of public funds through the enforcement of an invalid or unconstitutional law;29 (e) where it
involves the right of members of the Senate or House of Representatives to question the validity of a
Page

presidential veto or condition imposed on an item in an appropriation bill;30 or (f) where it involves an
 invalid law, which when enforced will put the petitioner in imminent danger of sustaining some direct
injury as a result thereof, or that he has been or is about to be denied some right or privilege to which
he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the
statute complained of.31 None of the above considerations allegedly obtains in the present case.

It is also the view of the public respondents that the fact that petitioner Abaya was a former lawmaker
would not suffice to confer locus standi on himself. Members of Congress may properly challenge the
validity of an official act of any department of the government only upon showing that the assailed
official act affects or impairs their rights and prerogatives as legislators.

The public respondents further assail the standing of the petitioners to file the instant suit claiming that
they failed to allege any specific injury suffered nor an interest that is direct and personal to them. If at
all, the interest or injuries claimed by the petitioners are allegedly merely of a general interest common
to all members of the public. Their interest is allegedly too vague, highly speculative and uncertain to
satisfy the requirements of locus standi.

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

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

Section 5.06. Evaluation and Comparison of Bids.

xxx

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

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

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

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

DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that an
agreement for the exclusion of foreign assisted projects from the coverage of local bidding regulations
does not contravene existing legislations because the statutory basis for foreign loan agreements is RA
100

4860, as amended, and under Section 4 thereof, the President is empowered to waive the application
of any law imposing restrictions on the procurement of goods and services pursuant to such loans.
Page
 Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as amended, and
PD 1594, relative to the award of foreign-assisted projects, are also invoked by the public respondents,
to wit:

Memorandum Circular No. 104:

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

xxx

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

Memorandum Circular No. 108:

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

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

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

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

SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of the
Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be
provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the
calendar year, submit to the Congress a complete report of its decisions on applications for loans to be
contracted or guaranteed by the Government or Government-owned and Controlled Corporations which
would have the effect of increasing the foreign debt, and containing other matters as may be provided
by law.

The Constitution, the public respondents emphasize, recognizes the enforceability of executive
agreements in the same way that it recognizes generally accepted principles of international law as
forming part of the law of the land.34 This recognition allegedly buttresses the binding effect of executive
agreements to which the Philippine Government is a signatory. It is pointed out by the public
respondents that executive agreements are essentially contracts governing the rights and obligations of
the parties. A contract, being the law between the parties, must be faithfully adhered to by them.
Guided by the fundamental rule of pacta sunt servanda, the Philippine Government bound itself to
perform in good faith its duties and obligations under Loan Agreement No. PH-P204.

The public respondents further argue against the applicability of RA 9184 stating that it was signed into
law on January 10, 2003.35 On the other hand, Loan Agreement No. PH-P204 was executed on
December 28, 1999, where the laws then in force on government procurements were PD 1594 and EO
40. The latter law (EO 40), in particular, excluded from its application "any existing and future
government commitments with respect to the bidding and award of contracts financed partly or wholly
with funds from international financing institutions as well as from bilateral and other similar foreign
sources."
101

The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation to
Page

Prequalify and to Bid" for the implementation of the CP I project was published in two leading national
 newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and December 5,
2002, or before the signing into law of RA 9184 on January 10, 2003. In this connection, the public
respondents point to Section 77 of IRR-A, which reads:

SEC. 77. Transitory Clause. –

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

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

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

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

It is also the position of the public respondents that even granting arguendo that Loan Agreement No.
PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable under the non-impairment
clause36 of the Constitution. The said loan agreement expressly provided that the procurement of goods
and services for the project financed by the same shall be governed by the Guidelines for Procurement
under OECF Loans dated December 1997. Further, Section 5.06 of the JBIC Procurement Guidelines
categorically provides that "[a]ny procedure under which bids above or below a predetermined bid
value assessment are automatically disqualified is not permitted."

The public respondents explain that since the contract is the law between the parties and Loan
Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall govern the parties’
relationship and further dictates that there be no ceiling price for the bidding, it naturally follows that any
subsequent law passed contrary to the letters of the said contract would have no effect with respect to
the parties’ rights and obligations arising therefrom.

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

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

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

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

SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a) goods,
supplies, materials and related services; (b) civil works; and (c) consulting services, by all National
102

Government agencies, including State Universities and Colleges (SUCs), Government-Owned or

Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs), hereby referred to as
Page
 the ‘Agencies.’ This Executive Order shall cover the procurement process from the pre-procurement
conference up to the award of contract.

xxx

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

EO 40 expressly recognizes as an exception from the application of the provisions thereof on approved
budget ceilings, those projects financed by international financing institutions (IFIs) and foreign bilateral
sources. Section 1 thereof, quoted in part earlier, further states:

SEC. 1. Scope and Application. x x x

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

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

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

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

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

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

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

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

xxx

REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the
inclusion of foreign contracts, may we just state that foreign contracts have, of course, been brought
103

into the ambit of the law because of the Filipino counterpart for this foreign projects, they are no longer
strictly foreign in nature but fall under the laws of the Philippine government.
Page
 THE CHAIRMAN (SEN. ANGARA). Okay. I think that’s pretty clear. I think the possible concern is that
some ODA are with strings attached especially the Japanese. The Japanese are quite strict about that,
that they are (sic) even provide the architect and the design, etcetera, plus, of course, the goods that
will be supplied.

Now, I think we’ve already provided that this is open to all and we will recognize our international
agreements so that this bill will not also restrict the flow of foreign funding, because some countries
now make it a condition that they supply both services and goods especially the Japanese.

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

MR. ENCARNACION. Actually, subject to any treaty.

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

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

The Court’s Rulings

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

Briefly stated, locus standi is "a right of appearance in a court of justice on a given question." 38 More
particularly, it is a party’s personal and substantial interest in a case such that he has sustained or will
sustain direct injury as a result of the governmental act being challenged. It calls for more than just a
generalized grievance. The term "interest" means a material interest, an interest in issue affected by
the decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.39 Standing or locus standi is a peculiar concept in constitutional law40 and the rationale for
requiring a party who challenges the constitutionality of a statute to allege such a personal stake in the
outcome of the controversy is "to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional questions."41

Locus standi, however, is merely a matter of procedure42 and it has been recognized that in some
cases, suits are not brought by parties who have been personally injured by the operation of a law or
any other government act but by concerned citizens, taxpayers or voters who actually sue in the public
interest.43 Consequently, the Court, in a catena of cases,44 has invariably adopted a liberal stance on
locus standi, including those cases involving taxpayers.

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

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

Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to the CP I
project, in particular, and to foreign-funded government projects, in general, and the fact that public
interest is indubitably involved considering the public expenditure of millions of pesos, warrant the Court
to adopt in the present case its liberal policy on locus standi.
104

In any case, for reasons which will be discussed shortly, the substantive arguments raised by the
Page

petitioners fail to persuade the Court as it holds that Resolution No. PJHL-A-04-012 is valid. As a
 corollary, the subsequent contract entered into by and between the DPWH and private respondent
China Road & Bridge Corporation is likewise valid.

History of Philippine Procurement Laws

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

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

Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated the
directive that no government contract for public service or for furnishing supplies, materials and
equipment to the government or any of its branches, agencies or instrumentalities, should be entered
into without public bidding except for very extraordinary reasons to be determined by a Committee
constituted thereunder. Then President Ferdinand Marcos issued PD 1594 prescribing guidelines for
government infrastructure projects and Section 454 thereof stated that they should generally be
undertaken by contract after competitive public bidding.

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

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

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

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

SEC. 76. Repealing Clause. —This law repeals Executive Order No. 40, series of 2001, entitled
"Consolidating Procurement Rules and Procedures for All National Government Agencies, Government
Owned or Controlled Corporations and/or Government Financial Institutions, and Requiring the Use of
the Government Electronic Procurement System"; Executive Order No. 262, series of 1996, entitled
105

"Amending Executive Order No. 302, series of 1996, entitled Providing Policies, Guidelines, Rules and
Regulations for the Procurement of Goods/Supplies by the National Government" and Section 3 of
Executive Order No. 201, series of 2000, entitled "Providing Additional Policies and Guidelines in the
Page

Procurement of Goods/Supplies by the National Government"; Executive Order No. 302, series of
 1996, entitled "Providing Policies, Guidelines, Rules and Regulations for the Procurement of
Goods/Supplies by the National Government" and Presidential Decree No. 1594 dated June 11, 1978,
entitled "Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure
Contracts." This law amends Title Six, Book Two of Republic Act No. 7160, otherwise known as the
"Local Government Code of 1991"; the relevant provisions of Executive Order No. 164, series of 1987,
entitled "Providing Additional Guidelines in the Processing and Approval of Contracts of the National
Government"; and the relevant provisions of Republic Act No. 7898 dated February 23, 1995, entitled
"An Act Providing for the Modernization of the Armed Forces of the Philippines and for Other
Purposes." Any other law, presidential decree or issuance, executive order, letter of instruction,
administrative order, proclamation, charter, rule or regulation and/or parts thereof contrary to or
inconsistent with the provisions of this Act is hereby repealed, modified or amended accordingly.

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

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

process undertaken for the CP I project. RA 9184

cannot be given retroactive application.

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

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

explicitly provided in Section 1 thereof that:

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

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

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

RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP I project
because it is well settled that a law or regulation has no retroactive application unless it expressly
provides for retroactivity.60 Indeed, Article 4 of the Civil Code is clear on the matter: "[l]aws shall have
no retroactive effect, unless the contrary is provided." In the absence of such categorical provision, RA
9184 will not be applied retroactively to the CP I project whose procurement process commenced even
before the said law took effect.
106

That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from the IRR-A
Page

formulated by the Joint Congressional Oversight Committee (composed of the Chairman of the Senate
Committee on Constitutional Amendments and Revision of Laws, and two members thereof appointed
 by the Senate President and the Chairman of the House Committee on Appropriations, and two
members thereof appointed by the Speaker of the House of Representatives) and the Government
Procurement Policy Board (GPPB). Section 77 of the IRR-A states, thus:

SEC. 77. Transitory Clause

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

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

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

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

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

Under EO 40, the award of the contract to private

respondent China Road & Bridge Corporation is valid

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

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

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

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

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

In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents as
likewise authorizing the President, in the contracting of any loan, credit or indebtedness thereunder,
"when necessary, agree to waive or modify the application of any law granting preferences or imposing
restrictions on international competitive bidding x x x." The said provision of law further provides that
107

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

Section 5.06. Evaluation and Comparison of Bids

xxx

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

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

Section 5.09. Award of Contract

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

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

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

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

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

The petitioners, in order to place the procurement process undertaken for the CP I project within the
ambit of RA 9184, vigorously assert that Loan Agreement No. PH-P204 is neither a treaty, an
international agreement nor an executive agreement. They cite Executive Order No. 459 dated
November 25, 1997 where the three agreements are defined in this wise:

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

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

b) Treaties – international agreements entered into by the Philippines which require legislative
concurrence after executive ratification. This term may include compacts like conventions,
declarations, covenants and acts.

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

The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the three
108

categories because to be any of the three, an agreement had to be one where the parties are the
Philippines as a State and another State. The JBIC, the petitioners maintain, is a Japanese banking
agency, which presumably has a separate juridical personality from the Japanese Government.
Page
 The petitioners’ arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204 taken
in conjunction with the Exchange of Notes dated December 27, 1999 between the Japanese
Government and the Philippine Government is an executive agreement.

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

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

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

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

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

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

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

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

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

Agreements concluded by the President which fall short of treaties are commonly referred to as
executive agreements and are no less common in our scheme of government than are the more formal
instruments – treaties and conventions. They sometimes take the form of exchange of notes and at
other times that of more formal documents denominated "agreements" or "protocols". The point where
ordinary correspondence between this and other governments ends and agreements – whether
denominated executive agreements or exchange of notes or otherwise – begin, may sometimes be
difficult of ready ascertainment. It would be useless to undertake to discuss here the large variety of
109

executive agreements as such, concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreements act, have been negotiated with foreign
governments. x x x70
Page
 The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of Japan
would extend loans to the Philippines with a view to promoting its economic stabilization and
development efforts; Loan I in the amount of Y79,8651,000,000 would be extended by the JBIC to the
Philippine Government to implement the projects in the List A (including the Arterial Road Links
Development Project - Phase IV); and that such loan (Loan I) would be used to cover payments to be
made by the Philippine executing agencies to suppliers, contractors and/or consultants of eligible
source countries under such contracts as may be entered into between them for purchases of products
and/or services required for the implementation of the projects enumerated in the List A. 71 With respect
to the procurement of the goods and services for the projects, it bears reiterating that as stipulated:

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

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

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

WHEREFORE, premises considered, the petition is DISMISSED.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

G.R. No. 159618 February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep.
LIZA L. MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity
as Secretary of Foreign Affairs, Respondents.

DECISION

VELASCO, JR., J.:

The Case

This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the
Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the
United States of America (USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized
sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs
during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as
110

then Executive Secretary.2

Rome Statute of the International Criminal Court

Page
 Having a key determinative bearing on this case is the Rome Statute3 establishing the International
Criminal Court (ICC) with "the power to exercise its jurisdiction over persons for the most serious
crimes of international concern x x x and shall be complementary to the national criminal
jurisdictions."4 The serious crimes adverted to cover those considered grave under international law,
such as genocide, crimes against humanity, war crimes, and crimes of aggression. 5

On December 28, 2000, the RP, through Charge d’Affaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is "subject to ratification, acceptance or approval" by the signatory
states.6 As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have
completed the ratification, approval and concurrence process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
(Agreement, hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under
the US Embassy Note adverted to and put in effect the Agreement with the US government. In esse,
the Agreement aims to protect what it refers to and defines as "persons" of the RP and US from
frivolous and harassment suits that might be brought against them in international tribunals. 8 It is
reflective of the increasing pace of the strategic security and defense partnership between the two
countries. As of May 2, 2003, similar bilateral agreements have been effected by and between the US
and 33 other countries.9

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, "persons" are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a
third country, the [US] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the Republic of the
Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third
country, the [GRP] will not agree to the surrender or transfer of that person by the third country
to any international tribunal, unless such tribunal has been established by the UN Security
Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party notifies
the other of its intent to terminate the Agreement. The provisions of this Agreement shall
continue to apply with respect to any act occurring, or any allegation arising, before the effective
date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender
agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of
diplomatic notes constituted a legally binding agreement under international law; and that, under US
law, the said agreement did not require the advice and consent of the US Senate. 10
111

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as
Page

without force and effect.

 For their part, respondents question petitioner’s standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate concurrence
for its efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of
the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED
THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR
CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-
03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED
THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE
PHILIPPINE SENATE.

A. Whether by entering into the x x x Agreement Respondents gravely abused their

discretion when they capriciously abandoned, waived and relinquished our only
legitimate recourse through the Rome Statute of the [ICC] to prosecute and try "persons"
as defined in the x x x Agreement, x x x or literally any conduit of American interests,
who have committed crimes of genocide, crimes against humanity, war crimes and the
crime of aggression, thereby abdicating Philippine Sovereignty.

B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the
[RP] President and the [DFA] Secretary x x x are obliged by the principle of good faith to
refrain from doing all acts which would substantially impair the value of the undertaking
as signed.

C. Whether the x x x Agreement constitutes an act which defeats the object and
purpose of the Rome Statute of the International Criminal Court and contravenes the
obligation of good faith inherent in the signature of the President affixed on the Rome
Statute of the International Criminal Court, and if so whether the x x x Agreement is void
and unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave
abuse of discretion amounting to lack or excess of jurisdiction in connection with its
execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR
CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT
VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE
CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE
SENATE x x x.11

The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted
validly, which resolves itself into the question of whether or not respondents gravely abused their
discretion in concluding it; and second, whether or not the Agreement, which has not been submitted to
the Senate for concurrence, contravenes and undermines the Rome Statute and other treaties. But
because respondents expectedly raised it, we shall first tackle the issue of petitioner’s legal standing.

The Court’s Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity
of the Agreement carries with it constitutional significance and is of paramount importance that justifies
its standing. Cited in this regard is what is usually referred to as the emergency powers cases,12 in
which ordinary citizens and taxpayers were accorded the personality to question the constitutionality of
executive issuances.
112

Locus standi is "a right of appearance in a court of justice on a given question."13 Specifically, it is "a
party’s personal and substantial interest in a case where he has sustained or will sustain direct injury as
Page

a result"14 of the act being challenged, and "calls for more than just a generalized grievance."15 The
 term "interest" refers to material interest, as distinguished from one that is merely incidental. 16 The
rationale for requiring a party who challenges the validity of a law or international agreement to allege
such a personal stake in the outcome of the controversy is "to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."17

Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases,
suits are not brought by parties who have been personally injured by the operation of a law or any other
government act, but by concerned citizens, taxpayers, or voters who actually sue in the public
interest.18 Consequently, in a catena of cases,19 this Court has invariably adopted a liberal stance on
locus standi.

Going by the petition, petitioner’s representatives pursue the instant suit primarily as concerned citizens
raising issues of transcendental importance, both for the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other government action, a petitioner needs
to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.20 expounded on this
requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not only that the law or any government act is invalid, but
also that he sustained or is in imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the
person complaining has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act
complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that
he is a citizen satisfies the requirement of personal interest.21

In the case at bar, petitioner’s representatives have complied with the qualifying conditions or specific
requirements exacted under the locus standi rule. As citizens, their interest in the subject matter of the
petition is direct and personal. At the very least, their assertions questioning the Agreement are made
of a public right, i.e., to ascertain that the Agreement did not go against established national policies,
practices, and obligations bearing on the State’s obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the
Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as we
have done in a long line of earlier cases, notably in the old but oft-cited emergency powers
cases22 and Kilosbayan v. Guingona, Jr.23 In cases of transcendental importance, we wrote again
in Bayan v. Zamora,24 "The Court may relax the standing requirements and allow a suit to prosper even
where there is no direct injury to the party claiming the right of judicial review."

Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk, digress from
or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse
of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government,"25 we cannot but resolve head on the issues raised before us. Indeed,
where an action of any branch of government is seriously alleged to have infringed the Constitution or
is done with grave abuse of discretion, it becomes not only the right but in fact the duty of the judiciary
to settle it. As in this petition, issues are precisely raised putting to the fore the propriety of
the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being that E/N
BFO-028-03 cannot be a valid medium for concluding the Agreement.

Petitioners’ contention––perhaps taken unaware of certain well-recognized international doctrines,

practices, and jargons––is untenable. One of these is the doctrine of incorporation, as expressed in
Section 2, Article II of the Constitution, wherein the Philippines adopts the generally accepted principles
113

of international law and international jurisprudence as part of the law of the land and adheres to the
policy of peace, cooperation, and amity with all nations.26 An exchange of notes falls "into the category
Page

of inter-governmental agreements,"27 which is an internationally accepted form of international

 agreement. The United Nations Treaty Collections (Treaty Reference Guide) defines the term as
follows:

An "exchange of notes" is a record of a routine agreement, that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being in
the possession of the one signed by the representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record its assent. The signatories of the letters
may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of
legislative approval.28

In another perspective, the terms "exchange of notes" and "executive agreements" have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes
binding through executive action.29 On the other hand, executive agreements concluded by the
President "sometimes take the form of exchange of notes and at other times that of more formal
documents denominated ‘agreements’ or ‘protocols.’"30 As former US High Commissioner to the
Philippines Francis B. Sayre observed in his work, The Constitutionality of Trade Agreement Acts:

The point where ordinary correspondence between this and other governments ends and agreements –
whether denominated executive agreements or exchange of notes or otherwise – begin, may
sometimes be difficult of ready ascertainment.31 x x x

It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the Non-
Surrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to be
bound––is a recognized mode of concluding a legally binding international written contract among
nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international
agreement concluded between states in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever its particular
designation."32 International agreements may be in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2) executive agreements that are similar to treaties, except
that they do not require legislative concurrence and are usually less formal and deal with a narrower
range of subject matters than treaties.33

Under international law, there is no difference between treaties and executive agreements in terms of
their binding effects on the contracting states concerned,34 as long as the negotiating functionaries
have remained within their powers.35 Neither, on the domestic sphere, can one be held valid if it
violates the Constitution.36 Authorities are, however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement aspect.37 As has been observed by US
constitutional scholars, a treaty has greater "dignity" than an executive agreement, because its
constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the
Senate, and the people;38 a ratified treaty, unlike an executive agreement, takes precedence over any
prior statutory enactment.39

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature
of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue
from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the following
observations made by US legal scholars: "[I]nternational agreements involving political issues or
changes of national policy and those involving international arrangements of a permanent character
usually take the form of treaties [while] those embodying adjustments of detail carrying out well
established national policies and traditions and those involving arrangements of a more or less
temporary nature take the form of executive agreements." 40

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the
subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered by
an executive agreement, such as commercial/consular relations, most-favored nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and settlement of
claims.
114

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and
Merchant,41 holding that an executive agreement through an exchange of notes cannot be used to
amend a treaty.
Page
 We are not persuaded.

The categorization of subject matters that may be covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement as an instrument of international
relations. The primary consideration in the choice of the form of agreement is the parties’ intent and
desire to craft an international agreement in the form they so wish to further their respective interests.
Verily, the matter of form takes a back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties in either international agreement
each labor under the pacta sunt servanda42 principle.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern
Sea Trading. Since then, the conduct of foreign affairs has become more complex and the domain of
international law wider, as to include such subjects as human rights, the environment, and the sea. In
fact, in the US alone, the executive agreements executed by its President from 1980 to 2000 covered
subjects such as defense, trade, scientific cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear safety, among others. 43 Surely, the enumeration
in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the
international agreement format would be convenient to serve its best interest. As Francis Sayre said in
his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive agreements as
such concluded from time to time. Hundreds of executive agreements, other than those entered into
under the trade-agreement act, have been negotiated with foreign governments. x x x They cover such
subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of
civil air craft, custom matters and commercial relations generally, international claims, postal matters,
the registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a treaty-

implementing executive agreement,45 which necessarily would cover the same matters subject of the
underlying treaty.

But over and above the foregoing considerations is the fact that––save for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution46––when a treaty is required, the Constitution
does not classify any subject, like that involving political issues, to be in the form of, and ratified as, a
treaty. What the Constitution merely prescribes is that treaties need the concurrence of the Senate by a
vote defined therein to complete the ratification process.

Petitioner’s reliance on Adolfo47 is misplaced, said case being inapplicable owing to different factual
milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified and
existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the
concurrence of the Senate for its ratification may not be used to amend a treaty that, under the
Constitution, is the product of the ratifying acts of the Executive and the Senate. The presence of a
treaty, purportedly being subject to amendment by an executive agreement, does not obtain under the
premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised,
referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds of
all the members of the Senate. The Court has, in Eastern Sea Trading,48 as reiterated in Bayan,49 given
recognition to the obligatory effect of executive agreements without the concurrence of the Senate:

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

The Agreement Not in Contravention of the Rome Statute

It is the petitioner’s next contention that the Agreement undermines the establishment of the ICC and is
null and void insofar as it unduly restricts the ICC’s jurisdiction and infringes upon the effectivity of the
115

Rome Statute. Petitioner posits that the Agreement was constituted solely for the purpose of providing
individuals or groups of individuals with immunity from the jurisdiction of the ICC; and such grant of
immunity through non-surrender agreements allegedly does not legitimately fall within the scope of Art.
Page

98 of the Rome Statute. It concludes that state parties with non-surrender agreements are prevented
 from meeting their obligations under the Rome Statute, thereby constituting a breach of Arts.
27,50 86,51 8952 and 9053 thereof.

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those
responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but as a
last resort, by the ICC; thus, any agreement—like the non-surrender agreement—that precludes the
ICC from exercising its complementary function of acting when a state is unable to or unwilling to do so,
defeats the object and purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the
Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that
substantially devalue the purpose and object of the Statute, as signed. Adding a nullifying ingredient to
the Agreement, according to petitioner, is the fact that it has an immoral purpose or is otherwise at
variance with a priorly executed treaty.

Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor does it differ
from, the Rome Statute. Far from going against each other, one complements the other. As a matter of
fact, the principle of complementarity underpins the creation of the ICC. As aptly pointed out by
respondents and admitted by petitioners, the jurisdiction of the ICC is to "be complementary to national
criminal jurisdictions [of the signatory states]."54 Art. 1 of the Rome Statute pertinently provides:

Article 1
The Court

An International Crimininal Court ("the Court") is hereby established. It x x x shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern, as referred
to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction
and functioning of the Court shall be governed by the provisions of this Statute. (Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty of every
State to exercise its criminal jurisdiction over those responsible for international crimes." This provision
indicates that primary jurisdiction over the so-called international crimes rests, at the first instance, with
the state where the crime was committed; secondarily, with the ICC in appropriate situations
contemplated under Art. 17, par. 155 of the Rome Statute.

Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20, Rome
Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As
far as relevant, the provision states that "no person who has been tried by another court for conduct x x
x [constituting crimes within its jurisdiction] shall be tried by the [International Criminal] Court with
respect to the same conduct x x x."

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional
conflict between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of
the Agreement substantially impairing the value of the RP’s undertaking under the Rome Statute.
Ignoring for a while the fact that the RP signed the Rome Statute ahead of the Agreement, it is
abundantly clear to us that the Rome Statute expressly recognizes the primary jurisdiction of states, like
the RP, over serious crimes committed within their respective borders, the complementary jurisdiction
of the ICC coming into play only when the signatory states are unwilling or unable to prosecute.

Given the above consideration, petitioner’s suggestion––that the RP, by entering into the Agreement,
violated its duty required by the imperatives of good faith and breached its commitment under the
Vienna Convention57 to refrain from performing any act tending to impair the value of a treaty, e.g., the
Rome Statute––has to be rejected outright. For nothing in the provisions of the Agreement, in relation
to the Rome Statute, tends to diminish the efficacy of the Statute, let alone defeats the purpose of the
ICC. Lest it be overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the
surrender of an erring person, should the process require the requested state to perform an act that
would violate some international agreement it has entered into. We refer to Art. 98(2) of the Rome
Statute, which reads:

Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
116

xxxx
Page
 2. The Court may not proceed with a request for surrender which would require the requested State to
act inconsistently with its obligations under international agreements pursuant to which the consent of a
sending State is required to surrender a person of that State to the Court, unless the Court can first
obtain the cooperation of the sending State for the giving of consent for the surrender.

Moreover, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only
obliged to refrain from acts which would defeat the object and purpose of a treaty;58 whereas a State-
Party, on the other hand, is legally obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and
not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which
would defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to
follow any provision in the treaty would be premature.

As a result, petitioner’s argument that State-Parties with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These
articles are only legally binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with
the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not Party to
this Statute the requested State, if it is not under an international obligation to extradite the person to
the requesting State, shall give priority to the request for surrender from the Court. x x x" In applying the
provision, certain undisputed facts should be pointed out: first, the US is neither a State-Party nor a
signatory to the Rome Statute; and second, there is an international agreement between the US and
the Philippines regarding extradition or surrender of persons, i.e., the Agreement. Clearly, even
assuming that the Philippines is a State-Party, the Rome Statute still recognizes the primacy of
international agreements entered into between States, even when one of the States is not a State-Party
to the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining
away the jurisdiction of the ICC to prosecute US nationals, government officials/employees or military
personnel who commit serious crimes of international concerns in the Philippines. Formulating
petitioner’s argument a bit differently, the RP, by entering into the Agreement, does thereby abdicate its
sovereignty, abdication being done by its waiving or abandoning its right to seek recourse through the
Rome Statute of the ICC for erring Americans committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of the
Philippines’ national criminal jurisdiction. National criminal jurisdiction being primary, as explained
above, it is always the responsibility and within the prerogative of the RP either to prosecute criminal
offenses equally covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the
Philippines may decide to try "persons" of the US, as the term is understood in the Agreement, under
our national criminal justice system. Or it may opt not to exercise its criminal jurisdiction over its erring
citizens or over US "persons" committing high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines refuses to prosecute,
the country would, in effect, accord discretion to the US to exercise either its national criminal
jurisdiction over the "person" concerned or to give its consent to the referral of the matter to the ICC for
trial. In the same breath, the US must extend the same privilege to the Philippines with respect to
"persons" of the RP committing high crimes within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction—to
the extent agreed upon—to subjects of another State due to the recognition of the principle of
extraterritorial immunity. What the Court wrote in Nicolas v. Romulo59—a case involving the
implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreement—is
apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some
aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like
Heads of State, diplomats and members of the armed forces contingents of a foreign State allowed to
117

enter another State’s territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate
Page

that some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state
 enters into an international agreement, it voluntarily sheds off part of its sovereignty. The Constitution,
as drafted, did not envision a reclusive Philippines isolated from the rest of the world. It even adheres,
as earlier stated, to the policy of cooperation and amity with all nations.60

By their nature, treaties and international agreements actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to
surrender or waive some aspects of their state power or agree to limit the exercise of their otherwise
exclusive and absolute jurisdiction. The usual underlying consideration in this partial surrender may be
the greater benefits derived from a pact or a reciprocal undertaking of one contracting party to grant the
same privileges or immunities to the other. On the rationale that the Philippines has adopted the
generally accepted principles of international law as part of the law of the land, a portion of sovereignty
may be waived without violating the Constitution.61 Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts.62

Agreement Not Immoral/Not at Variance

with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations
and/or being at variance with allegedly universally recognized principles of international law. The
immoral aspect proceeds from the fact that the Agreement, as petitioner would put it, "leaves criminals
immune from responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x
x x it precludes our country from delivering an American criminal to the [ICC] x x x." 63

The above argument is a kind of recycling of petitioner’s earlier position, which, as already discussed,
contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the
process undermined its treaty obligations under the Rome Statute, contrary to international law
principles.64

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly
described by the Solicitor General, "is an assertion by the Philippines of its desire to try and punish
crimes under its national law. x x x The agreement is a recognition of the primacy and competence of
the country’s judiciary to try offenses under its national criminal laws and dispense justice fairly and
judiciously."

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos
and Americans committing high crimes of international concern to escape criminal trial and punishment.
This is manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute
can be prosecuted and punished in the Philippines or in the US; or with the consent of the RP or the
US, before the ICC, assuming, for the nonce, that all the formalities necessary to bind both countries to
the Rome Statute have been met. For perspective, what the Agreement contextually prohibits is the
surrender by either party of individuals to international tribunals, like the ICC, without the consent of the
other party, which may desire to prosecute the crime under its existing laws. With the view we take of
things, there is nothing immoral or violative of international law concepts in the act of the Philippines of
assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.

No Grave Abuse of Discretion

Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the Agreement.
And without specifically saying so, petitioner would argue that the non-surrender agreement was
executed by the President, thru the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the same
having been discussed at length earlier on. As to the second portion, We wish to state that petitioner
virtually faults the President for performing, through respondents, a task conferred the President by the
Constitution—the power to enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and
government, is the sole organ and authority in the external affairs of the country.65 The Constitution
vests in the President the power to enter into international agreements, subject, in appropriate cases, to
the required concurrence votes of the Senate. But as earlier indicated, executive agreements may be
validly entered into without such concurrence. As the President wields vast powers and influence, her
118

conduct in the external affairs of the nation is, as Bayan would put it, "executive altogether." The right of
the President to enter into or ratify binding executive agreements has been confirmed by long
practice.66
Page
 In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-
Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution. At the end of the day, the President––by ratifying, thru her
deputies, the non-surrender agreement––did nothing more than discharge a constitutional duty and
exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein,
it may perhaps be pertinent to remind all and sundry that about the time this petition was interposed,
such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary.67 As the
Court emphasized in said case, the power to ratify a treaty, the Statute in that instance, rests with the
President, subject to the concurrence of the Senate, whose role relative to the ratification of a treaty is
limited merely to concurring in or withholding the ratification. And concomitant with this treaty-making
power of the President is his or her prerogative to refuse to submit a treaty to the Senate; or having
secured the latter’s consent to the ratification of the treaty, refuse to ratify it. 68 This prerogative, the
Court hastened to add, is the President’s alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to the Rome
Statute. Under Art. 12569 thereof, the final acts required to complete the treaty process and, thus, bring
it into force, insofar as the Philippines is concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise
known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other
Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

Section 17. Jurisdiction. – x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or
prosecution of a crime punishable under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime. Instead, the
authorities may surrender or extradite suspected or accused persons in the Philippines to the
appropriate international court, if any, or to another State pursuant to the applicable extradition laws
and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the State’s obligation in
relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war
crimes. Relying on the above-quoted statutory proviso, the view posits that the Philippine is required to
surrender to the proper international tribunal those persons accused of the grave crimes defined under
RA 9851, if it does not exercise its primary jurisdiction to prosecute them.

The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for
violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the
proper international tribunal; or (2) surrender the accused to another State if such surrender is
"pursuant to the applicable extradition laws and treaties." But the Philippines may exercise these
options only in cases where "another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime;" otherwise, the Philippines must prosecute
the crime before its own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal for any crime under
RA 9851, the Philippines has the option to surrender such US national to the international tribunal if it
decides not to prosecute such US national here. The view asserts that this option of the Philippines
under Sec. 17 of RA 9851 is not subject to the consent of the US, and any derogation of Sec. 17 of RA
9851, such as requiring the consent of the US before the Philippines can exercise such option, requires
an amendatory law. In line with this scenario, the view strongly argues that the Agreement prevents the
Philippines—without the consent of the US—from surrendering to any international tribunal US
nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851.
Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple
executive agreement in the form of an exchange of notes but must be implemented through an
extradition law or a treaty with the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the
Philippines adopts, as a national policy, the "generally accepted principles of international law as part of
119

the law of the land," the Court is further impressed to perceive the Rome Statute as declaratory of
customary international law. In other words, the Statute embodies principles of law which constitute
customary international law or custom and for which reason it assumes the status of an enforceable
Page

domestic law in the context of the aforecited constitutional provision. As a corollary, it is argued that any
 derogation from the Rome Statute principles cannot be undertaken via a mere executive agreement,
which, as an exclusive act of the executive branch, can only implement, but cannot amend or repeal, an
existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the principles of
law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the
Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal law that can
amend or supersede another law, in this instance Sec. 17 of RA 9851 and the status of the Rome
Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not
amend or is repugnant to RA 9851. For another, the view does not clearly state what precise principles
of law, if any, the Agreement alters. And for a third, it does not demonstrate in the concrete how
the Agreement seeks to frustrate the objectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former
merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting
criminal offenses committed by their respective citizens and military personnel, among others. The
jurisdiction of the ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian
law, genocide and other crimes against humanity;70 (2) provides penal sanctions and criminal liability
for their commission;71 and (3) establishes special courts for the prosecution of these crimes and for the
State to exercise primary criminal jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes
against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the
Philippine State to surrender to the proper international tribunal those persons accused of crimes
sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such persons. This
view is not entirely correct, for the above quoted proviso clearly provides discretion to the Philippine
State on whether to surrender or not a person accused of the crimes under RA 9851. The statutory
proviso uses the word "may." It is settled doctrine in statutory construction that the word "may" denotes
discretion, and cannot be construed as having mandatory effect.73 Thus, the pertinent second
pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.1avvphi1

Besides, even granting that the surrender of a person is mandatorily required when the Philippines
does not exercise its primary jurisdiction in cases where "another court or international tribunal is
already conducting the investigation or undertaking the prosecution of such crime," still, the tenor of
the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso aptly provides that the
surrender may be made "to another State pursuant to the applicable extradition laws and treaties." The
Agreement can already be considered a treaty following this Court’s decision in Nicolas v.
Romulo74 which cited Weinberger v. Rossi.75 In Nicolas, We held that "an executive agreement is a
‘treaty’ within the meaning of that word in international law and constitutes enforceable domestic law
vis-à-vis the United States."76

Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition
Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is
Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with
the RP-US Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.

The view’s reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions were filed
questioning the power of the President to enter into foreign loan agreements. However, before the
petitions could be resolved by the Court, the Office of the Solicitor General filed a Manifestation and
Motion averring that the Philippine Government decided not to continue with the ZTE National
Broadband Network Project, thus rendering the petition moot. In resolving the case, the Court took
judicial notice of the act of the executive department of the Philippines (the President) and found the
petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an
executive agreement. He stated that "an executive agreement has the force and effect of law x x x [it]
120

cannot amend or repeal prior laws."78 Hence, this argument finds no application in this case seeing as
RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be found in the ratio
decidendi of the case, but only in the dissenting opinion.
Page
 The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason
that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an extraditable offense if
it is punishable under the laws in both Contracting Parties x x x,"79 and thereby concluding that while
the Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes,
genocide and other crimes against humanity, there is no similar legislation in the US. It is further argued
that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the federal courts for an international
crime unless Congress adopts a law defining and punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In
fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter
118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the criminal offense of
"war crimes" which is similar to the war crimes found in both the Rome Statute and RA 9851, thus:

(a) Offense – Whoever, whether inside or outside the United States, commits a war crime, in
any of the circumstances described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death results to the victim, shall also be
subject to the penalty of death.

(b) Circumstances – The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed Forces of
the United States or a national of the United States (as defined in Section 101 of the
Immigration and Nationality Act).

(c) Definition – As used in this Section the term "war crime" means any conduct –

(1) Defined as a grave breach in any of the international conventions signed at Geneva
12 August 1949, or any protocol to such convention to which the United States is a
party;

(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d])
when committed in the context of and in association with an armed conflict not of an
international character; or

(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May
1996), when the United States is a party to such Protocol, willfully kills or causes serious
injury to civilians.801avvphi1

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

§1091. Genocide

(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific
intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as
such–

(1) kills members of that group;

(2) causes serious bodily injury to members of that group;

(3) causes the permanent impairment of the mental faculties of members of the group
through drugs, torture, or similar techniques;

(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
121

(5) imposes measures intended to prevent births within the group; or

Page

(6) transfers by force children of the group to another group;

 shall be punished as provided in subsection (b).81

Arguing further, another view has been advanced that the current US laws do not cover every crime
listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different
crimes under the US laws versus the Rome Statute. The view used a report written by Victoria K. Holt
and Elisabeth W. Dallas, entitled "On Trial: The US Military and the International Criminal Court," as its
basis.

At the outset, it should be pointed out that the report used may not have any weight or value under
international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of
international law, as follows: (1) international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states; (2) international custom, as evidence of a general
practice accepted as law; (3) the general principles of law recognized by civilized nations; and (4)
subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law. The report
does not fall under any of the foregoing enumerated sources. It cannot even be considered as the
"teachings of highly qualified publicists." A highly qualified publicist is a scholar of public international
law and the term usually refers to legal scholars or "academic writers."82 It has not been shown that the
authors83 of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes
are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under
the Rome Statute vis-à-vis the definitions under US laws:

Rome Statute US Law

Article 6
Genocide
For the purpose of this Statute, "genocide"
means any of the following acts committed
with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group,
as such:
§1091. Genocide
(a) Basic Offense – Whoever,
whether in the time of peace or in
time of war and with specific intent
to destroy, in whole or in substantial
part, a national, ethnic, racial or
religious group as such–

(a) Killing members of the group; (1) kills members of that

group;
(b) Causing serious bodily or mental
harm to members of the group; (2) causes serious bodily
injury to members of that
(c) Deliberately inflicting on the group;
group conditions of life calculated to
bring about its physical destruction (3) causes the permanent
in whole or in part; impairment of the mental
faculties of members of the
(d) Imposing measures intended to group through drugs, torture,
prevent births within the group; or similar techniques;

(e) Forcibly transferring children of (4) subjects the group to

the group to another group. conditions of life that are
intended to cause the
physical destruction of the
group in whole or in part;

(5) imposes measures

intended to prevent births
within the group; or

(6) transfers by force

children of the group to
another group;
122

shall be punished as provided in

subsection (b).
Page
 Article 8
War Crimes
2. For the purpose of this Statute,
"war crimes" means:
(a) Grave breaches of the
Geneva Conventions of 12
August 1949, namely, any of
the following acts against
persons or property
protected under the
provisions of the relevant
Geneva Convention: x x x84
(b) Other serious violations
of the laws and customs
applicable in international
armed conflict, within the
established framework of
international law, namely,
any of the following acts:
xxxx
(c) In the case of an armed
conflict not of an
international character,
serious violations of article 3
common to the four Geneva
Conventions of 12 August
1949, namely, any of the
following acts committed
against persons taking no
active part in the hostilities,
including members of armed
forces who have laid down
their arms and those placed
hors de combat by sickness,
wounds, detention or any
other cause:
(d) Definition – As used in this
Section the term "war crime" means
any conduct –
(1) Defined as a grave breach in
any of the international conventions
signed at Geneva 12 August 1949,
or any protocol to such convention
to which the United States is a
party;
(2) Prohibited by Article 23, 25, 27
or 28 of the Annex to the Hague
Convention IV, Respecting the Laws
and Customs of War on Land,
signed 18 October 1907;
(3) Which constitutes a grave
breach of common Article 3 (as
defined in subsection [d]85) when
committed in the context of and in
association with an armed conflict
not of an international character; or
(4) Of a person who, in relation to
an armed conflict and contrary to
the provisions of the Protocol on
Prohibitions or Restrictions on the
Use of Mines, Booby-Traps and
Other Devices as amended at
Geneva on 3 May 1996 (Protocol II
as amended on 3 May 1996), when
the United States is a party to such
Protocol, willfully kills or causes
serious injury to civilians.86

xxxx

(d) Paragraph 2 (c) applies

to armed conflicts not of an
international character and
thus does not apply to
situations of internal
disturbances and tensions,
such as riots, isolated and
sporadic acts of violence or
other acts of a similar
nature.

(e) Other serious violations

of the laws and customs
applicable in armed conflicts
not of an international
character, within the
established framework of
international law, namely,
123

any of the following acts: x x

x.
Page
 Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself
stated as much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the Court and
crimes within the Uniform Code of Military Justice that would expose US personnel to the Court. Since
US military lawyers were instrumental in drafting the elements of crimes outlined in the Rome Statute,
they ensured that most of the crimes were consistent with those outlined in the UCMJ and gave
strength to complementarity for the US. Small areas of potential gaps between the UCMJ and the
Rome Statute, military experts argued, could be addressed through existing military laws. 87 x x x

The report went on further to say that "[a]ccording to those involved, the elements of crimes laid out in
the Rome Statute have been part of US military doctrine for decades."88 Thus, the argument proffered
cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana89 case already
held international law as part of the law of the US, to wit:

International law is part of our law, and must be ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no controlling executive or legislative act
or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence
of these, to the works of jurists and commentators who by years of labor, research, and experience
have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are
resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought
to be, but for the trustworthy evidence of what the law really is.90 (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation.
The cited ruling in U.S. v. Coolidge,91 which in turn is based on the holding in U.S. v. Hudson,92 only
applies to common law and not to the law of nations or international law.93 Indeed, the Court in U.S. v.
Hudson only considered the question, "whether the Circuit Courts of the United States can exercise a
common law jurisdiction in criminal cases."94 Stated otherwise, there is no common law crime in the US
but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including
international crimes, even without any local statute.95 In fact, years later, US courts would apply
international law as a source of criminal liability despite the lack of a local statute criminalizing it as
such. So it was that in Ex Parte Quirin96 the US Supreme Court noted that "[f]rom the very beginning of
its history this Court has recognized and applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well
as of enemy individuals."97 It went on further to explain that Congress had not undertaken the task of
codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to
codify that branch of international law or to mark its precise boundaries, or to enumerate or define by
statute all the acts which that law condemns. An Act of Congress punishing ‘the crime of piracy as
defined by the law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10,
‘to define and punish’ the offense since it has adopted by reference the sufficiently precise definition of
international law. x x x Similarly by the reference in the 15th Article of War to ‘offenders or offenses that
x x x by the law of war may be triable by such military commissions. Congress has incorporated by
reference, as within the jurisdiction of military commissions, all offenses which are defined as such by
the law of war x x x, and which may constitutionally be included within that jurisdiction.98 x x x
(Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that
genocide, war crimes and crimes against humanity have attained the status of customary international
law. Some even go so far as to state that these crimes have attained the status of jus cogens. 99

Customary international law or international custom is a source of international law as stated in the
Statute of the ICJ.100 It is defined as the "general and consistent practice of states recognized and
followed by them from a sense of legal obligation."101 In order to establish the customary status of a
particular norm, two elements must concur: State practice, the objective element; and opinio juris sive
124

necessitates, the subjective element.102

State practice refers to the continuous repetition of the same or similar kind of acts or norms by
Page

States.103 It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity
 and consistency; and (3) duration.104 While, opinio juris, the psychological element, requires that the
state practice or norm "be carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it."105

"The term ‘jus cogens’ means the ‘compelling law.’"106 Corollary, "a jus cogens norm holds the highest
hierarchical position among all other customary norms and principles."107 As a result, jus cogens norms
are deemed "peremptory and non-derogable."108 When applied to international crimes, "jus cogens
crimes have been deemed so fundamental to the existence of a just international legal order that states
cannot derogate from them, even by agreement."109

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise
jurisdiction over an individual who commits certain heinous and widely condemned offenses, even
when no other recognized basis for jurisdiction exists."110 "The rationale behind this principle is that the
crime committed is so egregious that it is considered to be committed against all members of the
international community"111 and thus granting every State jurisdiction over the crime.112

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the
doctrine of incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome
Statute is not declaratory of customary international law.

The first element of customary international law, i.e., "established, widespread, and consistent practice
on the part of States,"113 does not, under the premises, appear to be obtaining as reflected in this
simple reality: As of October 12, 2010, only 114114 States have ratified the Rome Statute, subsequent to
its coming into force eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of
194115 countries in the world, or roughly 58.76%, have ratified the Rome Statute casts doubt on whether
or not the perceived principles contained in the Statute have attained the status of customary law and
should be deemed as obligatory international law. The numbers even tend to argue against the urgency
of establishing international criminal courts envisioned in the Rome Statute. Lest it be overlooked, the
Philippines, judging by the action or inaction of its top officials, does not even feel bound by the Rome
Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the Philippine representative
signed the Statute, but the treaty has not been transmitted to the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring
elements, thus:

Custom or customary international law means "a general and consistent practice of states followed by
them from a sense of legal obligation [opinio juris] x x x." This statement contains the two basic
elements of custom: the material factor, that is how the states behave, and the psychological factor or
subjective factor, that is, why they behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the
generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to determine
why states behave the way they do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a
certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is
not law.116 (Emphasis added.)
125

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the
different countries in the world that the prosecution of internationally recognized crimes of genocide,
Page

etc. should be handled by a particular international criminal court.

 Absent the widespread/consistent-practice-of-states factor, the second or the psychological element
must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the
first place, that they are actually behaving, as a matter of settled and consistent practice, in a certain
manner. This implicitly requires belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it.117 Like the first element, the second element has likewise not
been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated
therein as evidenced by it requiring State consent.118 Even further, the Rome Statute specifically and
unequivocally requires that: "This Statute is subject to ratification, acceptance or approval by signatory
States."119 These clearly negate the argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great
respect. The power to enter into executive agreements has long been recognized to be lodged with the
President. As We held in Neri v. Senate Committee on Accountability of Public Officers and
Investigations, "[t]he power to enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence."120 The rationale behind this
principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial
branches of the government. Thus, absent any clear contravention of the law, courts should exercise
utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender
Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of
merit. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

G.R. No. 185572 February 7, 2012

CHINA NATIONAL MACHINERY & EQUIPMENT CORP. (GROUP), Petitioner,

vs.
HON. CESAR D. SANTAMARIA, in his official capacity as Presiding Judge of Branch 145,
Regional Trial Court of Makati City, HERMINIO HARRY L. ROQUE, JR., JOEL R. BUTUYAN,
ROGER R. RAYEL, ROMEL R. BAGARES, CHRISTOPHER FRANCISCO C. BOLASTIG, LEAGUE
OF URBAN POOR FOR ACTION (LUPA), KILUSAN NG MARALITA SA MEYCAUAYAN (KMM-
LUPA CHAPTER), DANILO M. CALDERON, VICENTE C. ALBAN, MERLYN M. VAAL, LOLITA S.
QUINONES, RICARDO D. LANOZO, JR., CONCHITA G. GOZO, MA. TERESA D. ZEPEDA,
JOSEFINA A. LANOZO, and SERGIO C. LEGASPI, JR., KALIPUNAN NG DAMAYANG MAHIHIRAP
(KADAMAY), EDY CLERIGO, RAMMIL DINGAL, NELSON B. TERRADO, CARMEN DEUNIDA, and
EDUARDO LEGSON, Respondents.

DECISION

SERENO, J.:

This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary Restraining
Order (TRO) and/or Preliminary Injunction assailing the 30 September 2008 Decision and 5 December
2008 Resolution of the Court of Appeals (CA) in CA–G.R. SP No. 103351.1

On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG),
represented by its chairperson, Ren Hongbin, entered into a Memorandum of Understanding with the
126

North Luzon Railways Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for the
conduct of a feasibility study on a possible railway line from Manila to San Fernando, La Union (the
Northrail Project).2
Page
 On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of
the Philippines (DOF) entered into a Memorandum of Understanding (Aug 30 MOU), wherein China
agreed to extend Preferential Buyer’s Credit to the Philippine government to finance the Northrail
Project.3 The Chinese government designated EXIM Bank as the lender, while the Philippine
government named the DOF as the borrower.4 Under the Aug 30 MOU, EXIM Bank agreed to extend
an amount not exceeding USD 400,000,000 in favor of the DOF, payable in 20 years, with a 5-year
grace period, and at the rate of 3% per annum.5

On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a
letter to DOF Secretary Jose Isidro Camacho (Sec. Camacho) informing him of CNMEG’s designation
as the Prime Contractor for the Northrail Project.6

On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of
Section I, Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the
Contract Agreement).7 The contract price for the Northrail Project was pegged at USD 421,050,000.8

On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial
agreement – Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement).9 In the Loan
Agreement, EXIM Bank agreed to extend Preferential Buyer’s Credit in the amount of USD
400,000,000 in favor of the Philippine government in order to finance the construction of Phase I of the
Northrail Project.10

On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with
Urgent Motion for Summary Hearing to Determine the Existence of Facts and Circumstances Justifying
the Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction and/or TRO against CNMEG,
the Office of the Executive Secretary, the DOF, the Department of Budget and Management, the
National Economic Development Authority and Northrail.11 The case was docketed as Civil Case No.
06-203 before the Regional Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC
Br. 145). In the Complaint, respondents alleged that the Contract Agreement and the Loan Agreement
were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184),
otherwise known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445,
otherwise known as the Government Auditing Code; and (d) Executive Order No. 292, otherwise known
as the Administrative Code.12

RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing on the issuance of
injunctive reliefs.13 On 29 March 2006, CNMEG filed an Urgent Motion for Reconsideration of this
Order.14 Before RTC Br. 145 could rule thereon, CNMEG filed a Motion to Dismiss dated 12 April 2006,
arguing that the trial court did not have jurisdiction over (a) its person, as it was an agent of the Chinese
government, making it immune from suit, and (b) the subject matter, as the Northrail Project was a
product of an executive agreement.15

On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEG’s Motion to Dismiss and
setting the case for summary hearing to determine whether the injunctive reliefs prayed for should be
issued.16 CNMEG then filed a Motion for Reconsideration,17 which was denied by the trial court in an
Order dated 10 March 2008.18 Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for
the Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008.19

In the assailed Decision dated 30 September 2008, the appellate court dismissed the Petition for
Certiorari.20 Subsequently, CNMEG filed a Motion for Reconsideration,21 which was denied by the CA in
a Resolution dated 5 December 2008.22 Thus, CNMEG filed the instant Petition for Review on Certiorari
dated 21 January 2009, raising the following issues: 23

Whether or not petitioner CNMEG is an agent of the sovereign People’s Republic of China.

Whether or not the Northrail contracts are products of an executive agreement between two sovereign
states.

Whether or not the certification from the Department of Foreign Affairs is necessary under the foregoing
circumstances.

Whether or not the act being undertaken by petitioner CNMEG is an act jure imperii.
127

Whether or not the Court of Appeals failed to avoid a procedural limbo in the lower court.
Page

Whether or not the Northrail Project is subject to competitive public bidding.

 Whether or not the Court of Appeals ignored the ruling of this Honorable Court in the Neri case.

CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145 for lack of jurisdiction. It
likewise requests this Court for the issuance of a TRO and, later on, a writ of preliminary injunction to
restrain public respondent from proceeding with the disposition of Civil Case No. 06-203.

The crux of this case boils down to two main issues, namely:

1. Whether CNMEG is entitled to immunity, precluding it from being sued before a local court.

2. Whether the Contract Agreement is an executive agreement, such that it cannot be

questioned by or before a local court.

First issue: Whether CNMEG is entitled to immunity

This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,24 to wit:

There are two conflicting concepts of sovereign immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure gestionis. (Emphasis supplied; citations
omitted.)

xxx xxx xxx

The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly true with
respect to the Communist states which took control of nationalized business activities and international
trading.

In JUSMAG v. National Labor Relations Commission,25 this Court affirmed the Philippines’ adherence to
the restrictive theory as follows:

The doctrine of state immunity from suit has undergone further metamorphosis. The view evolved that
the existence of a contract does not, per se, mean that sovereign states may, at all times, be sued in
local courts. The complexity of relationships between sovereign states, brought about by their
increasing commercial activities, mothered a more restrictive application of the doctrine.

xxx xxx xxx

As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign
or governmental activities (jure imperii). The mantle of state immunity cannot be extended to
commercial, private and proprietary acts (jure gestionis).26 (Emphasis supplied.)

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act
involved – whether the entity claiming immunity performs governmental, as opposed to proprietary,
functions. As held in United States of America v. Ruiz –27

The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an individual and can thus be deemed
to have tacitly given its consent to be sued only when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign functions.28

A. CNMEG is engaged in a proprietary activity.

A threshold question that must be answered is whether CNMEG performs governmental or proprietary
functions. A thorough examination of the basic facts of the case would show that CNMEG is engaged in
a proprietary activity.
128

The parties executed the Contract Agreement for the purpose of constructing the Luzon Railways, viz: 29
Page
 WHEREAS the Employer (Northrail) desired to construct the railways form Caloocan to Malolos,
section I, Phase I of Philippine North Luzon Railways Project (hereinafter referred to as THE
PROJECT);

AND WHEREAS the Contractor has offered to provide the Project on Turnkey basis, including design,
manufacturing, supply, construction, commissioning, and training of the Employer’s personnel;

AND WHEREAS the Loan Agreement of the Preferential Buyer’s Credit between Export-Import Bank of
China and Department of Finance of Republic of the Philippines;

NOW, THEREFORE, the parties agree to sign this Contract for the Implementation of the Project.

The above-cited portion of the Contract Agreement, however, does not on its own reveal whether the
construction of the Luzon railways was meant to be a proprietary endeavor. In order to fully understand
the intention behind and the purpose of the entire undertaking, the Contract Agreement must not be
read in isolation. Instead, it must be construed in conjunction with three other documents executed in
relation to the Northrail Project, namely: (a) the Memorandum of Understanding dated 14 September
2002 between Northrail and CNMEG;30 (b) the letter of Amb. Wang dated 1 October 2003 addressed to
Sec. Camacho;31 and (c) the Loan Agreement.32

1. Memorandum of Understanding dated 14 September 2002

The Memorandum of Understanding dated 14 September 2002 shows that CNMEG sought the
construction of the Luzon Railways as a proprietary venture. The relevant parts thereof read:

WHEREAS, CNMEG has the financial capability, professional competence and technical expertise to
assess the state of the [Main Line North (MLN)] and recommend implementation plans as well as
undertake its rehabilitation and/or modernization;

WHEREAS, CNMEG has expressed interest in the rehabilitation and/or modernization of the MLN from
Metro Manila to San Fernando, La Union passing through the provinces of Bulacan, Pampanga, Tarlac,
Pangasinan and La Union (the ‘Project’);

WHEREAS, the NORTHRAIL CORP. welcomes CNMEG’s proposal to undertake a Feasibility Study
(the "Study") at no cost to NORTHRAIL CORP.;

WHEREAS, the NORTHRAIL CORP. also welcomes CNMEG’s interest in undertaking the Project with
Supplier’s Credit and intends to employ CNMEG as the Contractor for the Project subject to compliance
with Philippine and Chinese laws, rules and regulations for the selection of a contractor;

WHEREAS, the NORTHRAIL CORP. considers CNMEG’s proposal advantageous to the Government
of the Republic of the Philippines and has therefore agreed to assist CNMEG in the conduct of the
aforesaid Study;

xxx xxx xxx

II. APPROVAL PROCESS

2.1 As soon as possible after completion and presentation of the Study in accordance with Paragraphs
1.3 and 1.4 above and in compliance with necessary governmental laws, rules, regulations and
procedures required from both parties, the parties shall commence the preparation and negotiation of
the terms and conditions of the Contract (the "Contract") to be entered into between them on the
implementation of the Project. The parties shall use their best endeavors to formulate and finalize a
Contract with a view to signing the Contract within one hundred twenty (120) days from CNMEG’s
presentation of the Study.33 (Emphasis supplied)

Clearly, it was CNMEG that initiated the undertaking, and not the Chinese government. The Feasibility
Study was conducted not because of any diplomatic gratuity from or exercise of sovereign functions by
the Chinese government, but was plainly a business strategy employed by CNMEG with a view to
securing this commercial enterprise.
129

2. Letter dated 1 October 2003

That CNMEG, and not the Chinese government, initiated the Northrail Project was confirmed by Amb.
Page

Wang in his letter dated 1 October 2003, thus:

 1. CNMEG has the proven competence and capability to undertake the Project as evidenced by
the ranking of 42 given by the ENR among 225 global construction companies.

2. CNMEG already signed an MOU with the North Luzon Railways Corporation last September
14, 2000 during the visit of Chairman Li Peng. Such being the case, they have already
established an initial working relationship with your North Luzon Railways Corporation. This
would categorize CNMEG as the state corporation within the People’s Republic of China which
initiated our Government’s involvement in the Project.

3. Among the various state corporations of the People’s Republic of China, only CNMEG has
the advantage of being fully familiar with the current requirements of the Northrail Project having
already accomplished a Feasibility Study which was used as inputs by the North Luzon
Railways Corporation in the approvals (sic) process required by the Republic of the
Philippines.34 (Emphasis supplied.)

Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary or regular course of its
business as a global construction company. The implementation of the Northrail Project was intended
to generate profit for CNMEG, with the Contract Agreement placing a contract price of USD
421,050,000 for the venture.35 The use of the term "state corporation" to refer to CNMEG was only
descriptive of its nature as a government-owned and/or -controlled corporation, and its assignment as
the Primary Contractor did not imply that it was acting on behalf of China in the performance of the
latter’s sovereign functions. To imply otherwise would result in an absurd situation, in which all Chinese
corporations owned by the state would be automatically considered as performing governmental
activities, even if they are clearly engaged in commercial or proprietary pursuits.

3. The Loan Agreement

CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the Northrail Project
was signed by the Philippine and Chinese governments, and its assignment as the Primary Contractor
meant that it was bound to perform a governmental function on behalf of China. However, the Loan
Agreement, which originated from the same Aug 30 MOU, belies this reasoning, viz:

Article 11. xxx (j) Commercial Activity The execution and delivery of this Agreement by the Borrower
constitute, and the Borrower’s performance of and compliance with its obligations under this Agreement
will constitute, private and commercial acts done and performed for commercial purposes under
the laws of the Republic of the Philippines and neither the Borrower nor any of its assets is
entitled to any immunity or privilege (sovereign or otherwise) from suit, execution or any other
legal process with respect to its obligations under this Agreement, as the case may be, in any
jurisdiction. Notwithstanding the foregoing, the Borrower does not waive any immunity with respect of
its assets which are (i) used by a diplomatic or consular mission of the Borrower and (ii) assets of a
military character and under control of a military authority or defense agency and (iii) located in the
Philippines and dedicated to public or governmental use (as distinguished from patrimonial assets or
assets dedicated to commercial use). (Emphasis supplied.)

(k) Proceedings to Enforce Agreement In any proceeding in the Republic of the Philippines to enforce
this Agreement, the choice of the laws of the People’s Republic of China as the governing law hereof
will be recognized and such law will be applied. The waiver of immunity by the Borrower, the
irrevocable submissions of the Borrower to the non-exclusive jurisdiction of the courts of the People’s
Republic of China and the appointment of the Borrower’s Chinese Process Agent is legal, valid, binding
and enforceable and any judgment obtained in the People’s Republic of China will be if introduced,
evidence for enforcement in any proceedings against the Borrower and its assets in the Republic of the
Philippines provided that (a) the court rendering judgment had jurisdiction over the subject matter of the
action in accordance with its jurisdictional rules, (b) the Republic had notice of the proceedings, (c) the
judgment of the court was not obtained through collusion or fraud, and (d) such judgment was not
based on a clear mistake of fact or law.36

Further, the Loan Agreement likewise contains this express waiver of immunity:

15.5 Waiver of Immunity The Borrower irrevocably and unconditionally waives, any immunity to which it
or its property may at any time be or become entitled, whether characterized as sovereign immunity or
otherwise, from any suit, judgment, service of process upon it or any agent, execution on judgment, set-
off, attachment prior to judgment, attachment in aid of execution to which it or its assets may be entitled
130

in any legal action or proceedings with respect to this Agreement or any of the transactions
contemplated hereby or hereunder. Notwithstanding the foregoing, the Borrower does not waive any
immunity in respect of its assets which are (i) used by a diplomatic or consular mission of the Borrower,
Page

(ii) assets of a military character and under control of a military authority or defense agency and (iii)
 located in the Philippines and dedicated to a public or governmental use (as distinguished from
patrimonial assets or assets dedicated to commercial use).37

Thus, despite petitioner’s claim that the EXIM Bank extended financial assistance to Northrail because
the bank was mandated by the Chinese government, and not because of any motivation to do business
in the Philippines,38 it is clear from the foregoing provisions that the Northrail Project was a purely
commercial transaction.

Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government,
while the Contract Agreement was between Northrail and CNMEG. Although the Contract Agreement is
silent on the classification of the legal nature of the transaction, the foregoing provisions of the Loan
Agreement, which is an inextricable part of the entire undertaking, nonetheless reveal the intention of
the parties to the Northrail Project to classify the whole venture as commercial or proprietary in
character.

Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of
Understanding dated 14 September 2002, Amb. Wang’s letter dated 1 October 2003, and the Loan
Agreement would reveal the desire of CNMEG to construct the Luzon Railways in pursuit of a purely
commercial activity performed in the ordinary course of its business.

B. CNMEG failed to adduce evidence that it is immune from suit under Chinese law.

Even assuming arguendo that CNMEG performs governmental functions, such claim does not
automatically vest it with immunity. This view finds support in Malong v. Philippine National Railways, in
which this Court held that "(i)mmunity from suit is determined by the character of the objects for which
the entity was organized."39

In this regard, this Court’s ruling in Deutsche Gesellschaft Für Technische Zusammenarbeit (GTZ) v.
CA40 must be examined. In Deutsche Gesellschaft, Germany and the Philippines entered into a
Technical Cooperation Agreement, pursuant to which both signed an arrangement promoting the Social
Health Insurance–Networking and Empowerment (SHINE) project. The two governments named their
respective implementing organizations: the Department of Health (DOH) and the Philippine Health
Insurance Corporation (PHIC) for the Philippines, and GTZ for the implementation of Germany’s
contributions. In ruling that GTZ was not immune from suit, this Court held:

The arguments raised by GTZ and the [Office of the Solicitor General (OSG)] are rooted in several
indisputable facts. The SHINE project was implemented pursuant to the bilateral agreements between
the Philippine and German governments. GTZ was tasked, under the 1991 agreement, with the
implementation of the contributions of the German government. The activities performed by GTZ
pertaining to the SHINE project are governmental in nature, related as they are to the promotion of
health insurance in the Philippines. The fact that GTZ entered into employment contracts with the
private respondents did not disqualify it from invoking immunity from suit, as held in cases such as Holy
See v. Rosario, Jr., which set forth what remains valid doctrine:

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate
test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is
engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in
a business or trade, the particular act or transaction must then be tested by its nature. If the act is in
pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is
not undertaken for gain or profit.

Beyond dispute is the tenability of the comment points (sic) raised by GTZ and the OSG that GTZ was
not performing proprietary functions notwithstanding its entry into the particular employment contracts.
Yet there is an equally fundamental premise which GTZ and the OSG fail to address, namely: Is GTZ,
by conception, able to enjoy the Federal Republic’s immunity from suit?

The principle of state immunity from suit, whether a local state or a foreign state, is reflected in Section
9, Article XVI of the Constitution, which states that "the State may not be sued without its consent."
Who or what consists of "the State"? For one, the doctrine is available to foreign States insofar as they
are sought to be sued in the courts of the local State, necessary as it is to avoid "unduly vexing the
peace of nations."
131

If the instant suit had been brought directly against the Federal Republic of Germany, there would be
no doubt that it is a suit brought against a State, and the only necessary inquiry is whether said State
Page

had consented to be sued. However, the present suit was brought against GTZ. It is necessary for us to
understand what precisely are the parameters of the legal personality of GTZ.
 Counsel for GTZ characterizes GTZ as "the implementing agency of the Government of the
Federal Republic of Germany," a depiction similarly adopted by the OSG. Assuming that the
characterization is correct, it does not automatically invest GTZ with the ability to invoke State
immunity from suit. The distinction lies in whether the agency is incorporated or unincorporated.

xxx xxx xxx

State immunity from suit may be waived by general or special law. The special law can take the form of
the original charter of the incorporated government agency. Jurisprudence is replete with examples of
incorporated government agencies which were ruled not entitled to invoke immunity from suit, owing to
provisions in their charters manifesting their consent to be sued.

xxx xxx xxx

It is useful to note that on the part of the Philippine government, it had designated two entities, the
Department of Health and the Philippine Health Insurance Corporation (PHIC), as the implementing
agencies in behalf of the Philippines. The PHIC was established under Republic Act No. 7875, Section
16 (g) of which grants the corporation the power "to sue and be sued in court." Applying the previously
cited jurisprudence, PHIC would not enjoy immunity from suit even in the performance of its functions
connected with SHINE, however, (sic) governmental in nature as (sic) they may be.

Is GTZ an incorporated agency of the German government? There is some mystery surrounding
that question. Neither GTZ nor the OSG go beyond the claim that petitioner is "the implementing
agency of the Government of the Federal Republic of Germany." On the other hand, private
respondents asserted before the Labor Arbiter that GTZ was "a private corporation engaged in the
implementation of development projects." The Labor Arbiter accepted that claim in his Order denying
the Motion to Dismiss, though he was silent on that point in his Decision. Nevertheless, private
respondents argue in their Comment that the finding that GTZ was a private corporation "was never
controverted, and is therefore deemed admitted." In its Reply, GTZ controverts that finding, saying that
it is a matter of public knowledge that the status of petitioner GTZ is that of the "implementing agency,"
and not that of a private corporation.

In truth, private respondents were unable to adduce any evidence to substantiate their claim that GTZ
was a "private corporation," and the Labor Arbiter acted rashly in accepting such claim without
explanation. But neither has GTZ supplied any evidence defining its legal nature beyond that of
the bare descriptive "implementing agency." There is no doubt that the 1991 Agreement
designated GTZ as the "implementing agency" in behalf of the German government. Yet the
catch is that such term has no precise definition that is responsive to our concerns. Inherently,
an agent acts in behalf of a principal, and the GTZ can be said to act in behalf of the German
state. But that is as far as "implementing agency" could take us. The term by itself does not
supply whether GTZ is incorporated or unincorporated, whether it is owned by the German state
or by private interests, whether it has juridical personality independent of the German
government or none at all.

xxx xxx xxx

Again, we are uncertain of the corresponding legal implications under German law surrounding
"a private company owned by the Federal Republic of Germany." Yet taking the description on
face value, the apparent equivalent under Philippine law is that of a corporation organized under
the Corporation Code but owned by the Philippine government, or a government-owned or
controlled corporation without original charter. And it bears notice that Section 36 of the
Corporate Code states that "[e]very corporation incorporated under this Code has the power
and capacity x x x to sue and be sued in its corporate name."

It is entirely possible that under German law, an entity such as GTZ or particularly GTZ itself has not
been vested or has been specifically deprived the power and capacity to sue and/or be sued. Yet in the
proceedings below and before this Court, GTZ has failed to establish that under German law, it has
not consented to be sued despite it being owned by the Federal Republic of Germany. We
adhere to the rule that in the absence of evidence to the contrary, foreign laws on a particular
subject are presumed to be the same as those of the Philippines, and following the most
intelligent assumption we can gather, GTZ is akin to a governmental owned or controlled
corporation without original charter which, by virtue of the Corporation Code, has expressly
132

consented to be sued. At the very least, like the Labor Arbiter and the Court of Appeals, this Court
has no basis in fact to conclude or presume that GTZ enjoys immunity from suit.41 (Emphasis supplied.)
Page
 Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG cannot claim
immunity from suit, even if it contends that it performs governmental functions. Its designation as the
Primary Contractor does not automatically grant it immunity, just as the term "implementing agency"
has no precise definition for purposes of ascertaining whether GTZ was immune from suit. Although
CNMEG claims to be a government-owned corporation, it failed to adduce evidence that it has not
consented to be sued under Chinese law. Thus, following this Court’s ruling in Deutsche Gesellschaft,
in the absence of evidence to the contrary, CNMEG is to be presumed to be a government-owned and -
controlled corporation without an original charter. As a result, it has the capacity to sue and be sued
under Section 36 of the Corporation Code.

C. CNMEG failed to present a certification from the Department of Foreign Affairs.

In Holy See,42 this Court reiterated the oft-cited doctrine that the determination by the Executive that an
entity is entitled to sovereign or diplomatic immunity is a political question conclusive upon the courts,
to wit:

In Public International Law, when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to
convey to the court that said defendant is entitled to immunity.

xxx xxx xxx

In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a
letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-
employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization v.
Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that
effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to
request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at
Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor General embodied the
"suggestion" in a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to
file its memorandum in support of petitioner’s claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644
[1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the courts
can inquire into the facts and make their own determination as to the nature of the acts and
transactions involved.43 (Emphasis supplied.)

The question now is whether any agency of the Executive Branch can make a determination of
immunity from suit, which may be considered as conclusive upon the courts. This Court, in Department
of Foreign Affairs (DFA) v. National Labor Relations Commission (NLRC),44 emphasized the DFA’s
competence and authority to provide such necessary determination, to wit:

The DFA’s function includes, among its other mandates, the determination of persons and institutions
covered by diplomatic immunities, a determination which, when challenge, (sic) entitles it to seek relief
from the court so as not to seriously impair the conduct of the country's foreign relations. The DFA must
be allowed to plead its case whenever necessary or advisable to enable it to help keep the credibility of
the Philippine government before the international community. When international agreements are
concluded, the parties thereto are deemed to have likewise accepted the responsibility of seeing to it
that their agreements are duly regarded. In our country, this task falls principally of (sic) the DFA as
being the highest executive department with the competence and authority to so act in this aspect of
the international arena.45 (Emphasis supplied.)

Further, the fact that this authority is exclusive to the DFA was also emphasized in this Court’s ruling in
Deutsche Gesellschaft:
133

It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was imperative for
petitioners to secure from the Department of Foreign Affairs "a certification of respondents’ diplomatic
Page

status and entitlement to diplomatic privileges including immunity from suits." The requirement might
 not necessarily be imperative. However, had GTZ obtained such certification from the DFA, it would
have provided factual basis for its claim of immunity that would, at the very least, establish a disputable
evidentiary presumption that the foreign party is indeed immune which the opposing party will have to
overcome with its own factual evidence. We do not see why GTZ could not have secured such
certification or endorsement from the DFA for purposes of this case. Certainly, it would have been
highly prudential for GTZ to obtain the same after the Labor Arbiter had denied the motion to dismiss.
Still, even at this juncture, we do not see any evidence that the DFA, the office of the executive branch
in charge of our diplomatic relations, has indeed endorsed GTZ’s claim of immunity. It may be possible
that GTZ tried, but failed to secure such certification, due to the same concerns that we have discussed
herein.

Would the fact that the Solicitor General has endorsed GTZ’s claim of State’s immunity from suit before
this Court sufficiently substitute for the DFA certification? Note that the rule in public international law
quoted in Holy See referred to endorsement by the Foreign Office of the State where the suit is filed,
such foreign office in the Philippines being the Department of Foreign Affairs. Nowhere in the Comment
of the OSG is it manifested that the DFA has endorsed GTZ’s claim, or that the OSG had solicited the
DFA’s views on the issue. The arguments raised by the OSG are virtually the same as the arguments
raised by GTZ without any indication of any special and distinct perspective maintained by the
Philippine government on the issue. The Comment filed by the OSG does not inspire the same degree
of confidence as a certification from the DFA would have elicited.46 (Emphasis supplied.)

In the case at bar, CNMEG offers the Certification executed by the Economic and Commercial Office of
the Embassy of the People’s Republic of China, stating that the Northrail Project is in pursuit of a
sovereign activity.47 Surely, this is not the kind of certification that can establish CNMEG’s entitlement to
immunity from suit, as Holy See unequivocally refers to the determination of the "Foreign Office of the
state where it is sued."

Further, CNMEG also claims that its immunity from suit has the executive endorsement of both the
OSG and the Office of the Government Corporate Counsel (OGCC), which must be respected by the
courts. However, as expressly enunciated in Deutsche Gesellschaft, this determination by the OSG, or
by the OGCC for that matter, does not inspire the same degree of confidence as a DFA certification.
Even with a DFA certification, however, it must be remembered that this Court is not precluded from
making an inquiry into the intrinsic correctness of such certification.

D. An agreement to submit any dispute to arbitration may be construed as an implicit waiver of

immunity from suit.

In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a waiver by implication
of state immunity. In the said law, the agreement to submit disputes to arbitration in a foreign country is
construed as an implicit waiver of immunity from suit. Although there is no similar law in the Philippines,
there is reason to apply the legal reasoning behind the waiver in this case.

The Conditions of Contract,48 which is an integral part of the Contract Agreement,49 states:

33. SETTLEMENT OF DISPUTES AND ARBITRATION

33.1. Amicable Settlement

Both parties shall attempt to amicably settle all disputes or controversies arising from this Contract
before the commencement of arbitration.

33.2. Arbitration

All disputes or controversies arising from this Contract which cannot be settled between the Employer
and the Contractor shall be submitted to arbitration in accordance with the UNCITRAL Arbitration Rules
at present in force and as may be amended by the rest of this Clause. The appointing authority shall be
Hong Kong International Arbitration Center. The place of arbitration shall be in Hong Kong at Hong
Kong International Arbitration Center (HKIAC).

Under the above provisions, if any dispute arises between Northrail and CNMEG, both parties are
bound to submit the matter to the HKIAC for arbitration. In case the HKIAC makes an arbitral award in
favor of Northrail, its enforcement in the Philippines would be subject to the Special Rules on
134

Alternative Dispute Resolution (Special Rules). Rule 13 thereof provides for the Recognition and
Enforcement of a Foreign Arbitral Award. Under Rules 13.2 and 13.3 of the Special Rules, the party to
Page

arbitration wishing to have an arbitral award recognized and enforced in the Philippines must petition
 the proper regional trial court (a) where the assets to be attached or levied upon is located; (b) where
the acts to be enjoined are being performed; (c) in the principal place of business in the Philippines of
any of the parties; (d) if any of the parties is an individual, where any of those individuals resides; or (e)
in the National Capital Judicial Region.

From all the foregoing, it is clear that CNMEG has agreed that it will not be afforded immunity from suit.
Thus, the courts have the competence and jurisdiction to ascertain the validity of the Contract
Agreement.

Second issue: Whether the Contract Agreement is an executive agreement

Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty as
follows:

[A]n international agreement concluded between States in written form and governed by international
law, whether embodied in a single instrument or in two or more related instruments and whatever its
particular designation.

In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty, except that
the former (a) does not require legislative concurrence; (b) is usually less formal; and (c) deals with a
narrower range of subject matters.50

Despite these differences, to be considered an executive agreement, the following three requisites
provided under the Vienna Convention must nevertheless concur: (a) the agreement must be between
states; (b) it must be written; and (c) it must governed by international law. The first and the third
requisites do not obtain in the case at bar.

A. CNMEG is neither a government nor a government agency.

The Contract Agreement was not concluded between the Philippines and China, but between Northrail
and CNMEG.51 By the terms of the Contract Agreement, Northrail is a government-owned or -controlled
corporation, while CNMEG is a corporation duly organized and created under the laws of the People’s
Republic of China.52 Thus, both Northrail and CNMEG entered into the Contract Agreement as entities
with personalities distinct and separate from the Philippine and Chinese governments, respectively.

Neither can it be said that CNMEG acted as agent of the Chinese government. As previously
discussed, the fact that Amb. Wang, in his letter dated 1 October 2003,53 described CNMEG as a "state
corporation" and declared its designation as the Primary Contractor in the Northrail Project did not
mean it was to perform sovereign functions on behalf of China. That label was only descriptive of its
nature as a state-owned corporation, and did not preclude it from engaging in purely commercial or
proprietary ventures.

B. The Contract Agreement is to be governed by Philippine law.

Article 2 of the Conditions of Contract,54 which under Article 1.1 of the Contract Agreement is an integral
part of the latter, states:

APPLICABLE LAW AND GOVERNING LANGUAGE

The contract shall in all respects be read and construed in accordance with the laws of the Philippines.

The contract shall be written in English language. All correspondence and other documents pertaining
to the Contract which are exchanged by the parties shall be written in English language.

Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties
have effectively conceded that their rights and obligations thereunder are not governed by international
law.

It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of the
nature of an executive agreement. It is merely an ordinary commercial contract that can be questioned
before the local courts.
135

WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp.
(Group) is not entitled to immunity from suit, and the Contract Agreement is not an executive
Page

agreement. CNMEG’s prayer for the issuance of a TRO and/or Writ of Preliminary Injunction is DENIED
 for being moot and academic. This case is REMANDED to the Regional Trial Court of Makati, Branch
145, for further proceedings as regards the validity of the contracts subject of Civil Case No. 06-203.

No pronouncement on costs of suit.

SO ORDERED.
136
Page