G.R. No.
159618 February 1, 2011 The Agreement pertinently provides as follows:
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
The Case
This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to
nullify the Non-Surrender Agreement concluded by and between the Republic of the
Philippines (RP) and the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary
of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was
impleaded in his capacity as then Executive Secretary.2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome 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
1. For purposes of this Agreement, "persons" are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,
(a) be surrendered or transferred by any means to any international tribunal for any purpose,
unless such tribunal has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to
a third country, the [US] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the Republic of the
Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a
third country, the [GRP] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement
shall continue to apply with respect to any act occurring, or any allegation arising, before the
effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-
surrender agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that
the exchange of diplomatic notes constituted a legally binding agreement under international
law; and that, under US law, the said agreement did not require the advice and consent of the
US Senate.10
In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding
and ratifying the Agreement and prays that it be struck down as unconstitutional, or at least
declared as without force and effect.
For their part, respondents question petitioner’s standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate
concurrence for its efficacy. And for reasons detailed in their comment, respondents assert
the constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY
ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
FOR CONCLUDING THE RP-US NON SURRENDER AGREEMENT BY MEANS OF [E/N]
BFO-028-03 DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS IS PENDING
RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely abused their discretion
when they capriciously abandoned, waived and relinquished our only legitimate recourse
through the Rome Statute of the [ICC] to prosecute and try "persons" as defined in the x x x
Agreement, x x x or literally any conduit of American interests, who have committed crimes of
genocide, crimes against humanity, war crimes and the crime of aggression, thereby
abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP]
President and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain
from doing all acts which would substantially impair the value of the undertaking as signed.
C. Whether the x x x Agreement constitutes an act which defeats the object and purpose of
the Rome Statute of the International Criminal Court and contravenes the obligation of good
faith inherent in the signature of the President affixed on the Rome Statute of the International
Criminal Court, and if so whether the x x x Agreement is void and unenforceable on this
ground.
D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse
of discretion amounting to lack or excess of jurisdiction in connection with its execution.
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR
CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT
VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT
THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE
SENATE x x x.11
The foregoing issues may be summarized into two: first, whether or not the Agreement was
contracted validly, which resolves itself into the question of whether or not respondents
gravely abused their discretion in concluding it; and second, whether or not the Agreement,
which has not been submitted to the Senate for concurrence, contravenes and undermines
the Rome Statute and other treaties. But because respondents expectedly raised it, we shall
first tackle the issue of petitioner’s legal standing.
The Court’s Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the validity or
invalidity of the Agreement carries with it constitutional significance and is of paramount
importance that justifies its standing. Cited in this regard is what is usually referred to as the
emergency powers cases,12 in which ordinary citizens and taxpayers were accorded the
personality to question the constitutionality of executive issuances.
Locus standi is "a right of appearance in a court of justice on a given question."13
Specifically, it is "a party’s personal and substantial interest in a case where he has sustained
or will sustain direct injury as a result"14 of the act being challenged, and "calls for more than
just a generalized grievance."15 The term "interest" refers to material interest, as
distinguished from one that is merely incidental.16 The rationale for requiring a party who
challenges the validity of a law or international agreement to allege such a personal stake in
the outcome of the controversy is "to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."17
Locus standi, however, is merely a matter of procedure and it has been recognized that, in
some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act, but by concerned citizens, taxpayers, or
voters who actually sue in the public interest.18 Consequently, in a catena of cases,19 this
Court has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioner’s representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic and the
citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action, a
petitioner needs to meet certain specific requirements before he can be clothed with standing.
Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc.20 expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute or act complained of. In fine,
when the proceeding involves the assertion of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.21
In the case at bar, petitioner’s representatives have complied with the qualifying conditions or
specific requirements exacted under the locus standi rule. As citizens, their interest in the
subject matter of the petition is direct and personal. At the very least, their assertions
questioning the Agreement are made of a public right, i.e., to ascertain that the Agreement
did not go against established national policies, practices, and obligations bearing on the
State’s obligation to the community of nations.
At any event, the primordial importance to Filipino citizens in general of the issue at hand
impels the Court to brush aside the procedural barrier posed by the traditional requirement of
locus standi, as we have done in a long line of earlier cases, notably in the old but oft-cited
emergency powers cases22 and Kilosbayan v. Guingona, Jr.23 In cases of transcendental
importance, we wrote again in Bayan v. Zamora,24 "The Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to the party
claiming the right of judicial review."
Moreover, bearing in mind what the Court said in Tañada v. Angara, "that it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in matters
that involve grave abuse of discretion brought before it in appropriate cases, committed by
any officer, agency, instrumentality or department of the government,"25 we cannot but
resolve head on the issues raised before us. Indeed, where an action of any branch of
government is seriously alleged to have infringed the Constitution or is done with grave abuse
of discretion, it becomes not only the right but in fact the duty of the judiciary to settle it. As in
this petition, issues are precisely raised putting to the fore the propriety of the Agreement
pending the ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioner’s initial challenge against the Agreement relates to form, its threshold posture being
that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.
Petitioners’ contention––perhaps taken unaware of certain well-recognized international
doctrines, practices, and jargons––is untenable. One of these is the doctrine of incorporation,
as expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the
generally accepted principles of international law and international jurisprudence as part of
the law of the land and adheres to the policy of peace, cooperation, and amity with all
nations.26 An exchange of notes falls "into the category of inter-governmental
agreements,"27 which is an internationally accepted form of international agreement. The
United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:
An "exchange of notes" is a record of a routine agreement, that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under
the usual procedure, the accepting State repeats the text of the offering State to record its
assent. The signatories of the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is frequently resorted to, either
because of its speedy procedure, or, sometimes, to avoid the process of legislative
approval.28
In another perspective, the terms "exchange of notes" and "executive agreements" have
been used interchangeably, exchange of notes being considered a form of executive
agreement that becomes binding through executive action.29 On the other hand, executive
agreements concluded by the President "sometimes take the form of exchange of notes and
at other times that of more formal documents denominated ‘agreements’ or ‘protocols.’"30 As
former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The
Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends and
agreements – whether denominated executive agreements or exchange of notes or otherwise
– begin, may sometimes be difficult of ready ascertainment.31 x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03––be it viewed as the
Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as
consent to be bound––is a recognized mode of concluding a legally binding international
written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international
agreement concluded between states in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and whatever
its particular designation."32 International agreements may be in the form of (1) treaties that
require legislative concurrence after executive ratification; or (2) executive agreements that
are similar to treaties, except that they do not require legislative concurrence and are usually
less formal and deal with a narrower range of subject matters than treaties.33
Under international law, there is no difference between treaties and executive agreements in
terms of their binding effects on the contracting states concerned,34 as long as the
negotiating functionaries have remained within their powers.35 Neither, on the domestic
sphere, can one be held valid if it violates the Constitution.36 Authorities are, however,
agreed that one is distinct from another for accepted reasons apart from the concurrence-
requirement aspect.37 As has been observed by US constitutional scholars, a treaty has
greater "dignity" than an executive agreement, because its constitutional efficacy is beyond
doubt, a treaty having behind it the authority of the President, the Senate, and the people;38
a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory
enactment.39
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of
the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a
cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced
the following observations made by US legal scholars: "[I]nternational agreements involving
political issues or changes of national policy and those involving international arrangements
of a permanent character usually take the form of treaties [while] those embodying
adjustments of detail carrying out well established national policies and traditions and those
involving arrangements of a more or less temporary nature take the form of executive
agreements." 40
Pressing its point, petitioner submits that the subject of the Agreement does not fall under any
of the subject-categories that are enumerated in the Eastern Sea Trading case, and that may
be covered by an executive agreement, such as commercial/consular relations, most-favored
nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales
and Merchant,41 holding that an executive agreement through an exchange of notes cannot
be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on
the propriety of entering, on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the choice of the form of
agreement is the parties’ intent and desire to craft an international agreement in the form they
so wish to further their respective interests. Verily, the matter of form takes a back seat when
it comes to effectiveness and binding effect of the enforcement of a treaty or an executive
agreement, as the parties in either international agreement each labor under the pacta sunt
servanda42 principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision in
Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex
and the domain of international law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear
safety, among others.43 Surely, the enumeration in Eastern Sea Trading cannot circumscribe
the option of each state on the matter of which the international agreement format would be
convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom matters and commercial
relations generally, international claims, postal matters, the registration of trademarks and
copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treaty-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 Rome Statute. Petitioner posits that the Agreement was constituted
solely for the purpose of providing individuals or groups of individuals with immunity from the
jurisdiction of the ICC; and such grant of immunity through non-surrender agreements
allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It
concludes that state parties with non-surrender agreements are prevented from meeting their
obligations under the Rome Statute, thereby constituting a breach of Arts. 27,50 86,51 8952
and 9053 thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that
those responsible for the worst possible crimes are brought to justice in all cases, primarily by
states, but as a last resort, by the ICC; thus, any agreement—like the non-surrender
agreement—that precludes the ICC from exercising its complementary function of acting
when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome
Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of a
signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from
performing acts that substantially devalue the purpose and object of the Statute, as signed.
Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that it has
an immoral purpose or is otherwise at variance with a priorly executed treaty.
Contrary to petitioner’s pretense, the Agreement does not contravene or undermine, nor does
it differ from, the Rome Statute. Far from going against each other, one complements the
other. As a matter of fact, the principle of complementarity underpins the creation of the ICC.
As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the ICC is
to "be complementary to national criminal jurisdictions [of the signatory states]."54 Art. 1 of
the Rome Statute pertinently provides:
Article 1
The Court
An International Crimininal Court ("the Court") is hereby established. It x x x shall have the
power to exercise its jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions
of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty
of every State to exercise its criminal jurisdiction over those responsible for international
crimes." This provision indicates that primary jurisdiction over the so-called international
crimes rests, at the first instance, with the state where the crime was committed; secondarily,
with the ICC in appropriate situations contemplated under Art. 17, par. 155 of the Rome
Statute.
Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20,
Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that
of the ICC. As far as relevant, the provision states that "no person who has been tried by
another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried by the
[International Criminal] Court with respect to the same conduct x x x."
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and
the ICC; or the idea of the Agreement substantially impairing the value of the RP’s
undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the
Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute
expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes
committed within their respective borders, the complementary jurisdiction of the ICC coming
into play only when the signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioner’s suggestion––that the RP, by entering into the
Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna 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
xxxx
2. The Court may not proceed with a request for surrender which would require the requested
State to act inconsistently with its obligations under international agreements pursuant to
which the consent of a sending State is required to surrender a person of that State to the
Court, unless the Court can first obtain the cooperation of the sending State for the giving of
consent for the surrender.
Moreover, under international law, there is a considerable difference between a State-Party
and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory
state is only obliged to refrain from acts which would defeat the object and purpose of a
treaty;58 whereas a State-Party, on the other hand, is legally obliged to follow all the
provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome
Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to
refrain from acts which would defeat the object and purpose of the Rome Statute. Any
argument obliging the Philippines to follow any provision in the treaty would be premature.
As a result, petitioner’s argument that State-Parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89
and 90, must fail. These articles are only legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting
State is a State not Party to this Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall give priority to the request for
surrender from the Court. x x x" In applying the provision, certain undisputed facts should be
pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and
second, there is an international agreement between the US and the Philippines regarding
extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of international
agreements entered into between States, even when one of the States is not a State-Party to
the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international concerns
in the Philippines. Formulating petitioner’s argument a bit differently, the RP, by entering into
the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for erring
Americans committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance and
confirmance of the Philippines’ national criminal jurisdiction. National criminal jurisdiction
being primary, as explained above, it is always the responsibility and within the prerogative of
the RP either to prosecute criminal offenses equally covered by the Rome Statute or to
accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the
US, as the term is understood in the Agreement, under our national criminal justice system.
Or it may opt not to exercise its criminal jurisdiction over its erring citizens or over US
"persons" committing high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them. As to "persons" of the US whom the Philippines refuses to
prosecute, the country would, in effect, accord discretion to the US to exercise either its
national criminal jurisdiction over the "person" concerned or to give its consent to the referral
of the matter to the ICC for trial. In the same breath, the US must extend the same privilege
to the Philippines with respect to "persons" of the RP committing high crimes within US
territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines
agreeing to undertake the things set forth in the Agreement. Surely, one State can agree to
waive jurisdiction—to the extent agreed upon—to subjects of another State due to the
recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v.
Romulo59—a case involving the implementation of the criminal jurisdiction provisions of the
RP-US Visiting Forces Agreement—is apropos:
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction
or some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of
such immunity like Heads of State, diplomats and members of the armed forces contingents
of a foreign State allowed to enter another State’s territory. x x x
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost
every time a state enters into an international agreement, it voluntarily sheds off part of its
sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines isolated
from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and
amity with all nations.60
By their nature, treaties and international agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations
may decide to surrender or waive some aspects of their state power or agree to limit the
exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived from a pact or a
reciprocal undertaking of one contracting party to grant the same privileges or immunities to
the other. On the rationale that the Philippines has adopted the generally accepted principles
of international law as part of the law of the land, a portion of sovereignty may be waived
without violating the Constitution.61 Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts.62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly universally recognized principles of
international law. The immoral aspect proceeds from the fact that the Agreement, as
petitioner would put it, "leaves criminals immune from responsibility for unimaginable
atrocities that deeply shock the conscience of humanity; x x x it precludes our country from
delivering an American criminal to the [ICC] x x x."63
The above argument is a kind of recycling of petitioner’s earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its
sovereignty and in the process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.64
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, "is an assertion by the Philippines of
its desire to try and punish crimes under its national law. x x x The agreement is a recognition
of the primacy and competence of the country’s judiciary to try offenses under its national
criminal laws and dispense justice fairly and judiciously."
Petitioner, we believe, labors under the erroneous impression that the Agreement would allow
Filipinos and Americans committing high crimes of international concern to escape criminal
trial and punishment. This is manifestly incorrect. Persons who may have committed acts
penalized under the Rome Statute can be prosecuted and punished in the Philippines or in
the US; or with the consent of the RP or the US, before the ICC, assuming, for the nonce,
that all the formalities necessary to bind both countries to the Rome Statute have been met.
For perspective, what the Agreement contextually prohibits is the surrender by either party of
individuals to international tribunals, like the ICC, without the consent of the other party, which
may desire to prosecute the crime under its existing laws. With the view we take of things,
there is nothing immoral or violative of international law concepts in the act of the Philippines
of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense
considered criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioner’s final point revolves around the necessity of the Senate’s concurrence in the
Agreement. And without specifically saying so, petitioner would argue that the non-surrender
agreement was executed by the President, thru the DFA Secretary, in grave abuse of
discretion.
The Court need not delve on and belabor the first portion of the above posture of petitioner,
the same having been discussed at length earlier on. As to the second portion, We wish to
state that petitioner virtually faults the President for performing, through respondents, a task
conferred the President by the Constitution—the power to enter into international
agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state and
government, is the sole organ and authority in the external affairs of the country.65 The
Constitution vests in the President the power to enter into international agreements, subject,
in appropriate cases, to the required concurrence votes of the Senate. But as earlier
indicated, executive agreements may be validly entered into without such concurrence. As
the President wields vast powers and influence, her conduct in the external affairs of the
nation is, as Bayan would put it, "executive altogether." The right of the President to enter into
or ratify binding executive agreements has been confirmed by long practice.66
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of
the authority and discretion vested in her by the Constitution. At the end of the day, the
President––by ratifying, thru her deputies, the non-surrender agreement––did nothing more
than discharge a constitutional duty and exercise a prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of the other issues
raised herein, it may perhaps be pertinent to remind all and sundry that about the time this
petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of
the Executive Secretary.67 As the Court emphasized in said case, the power to ratify a treaty,
the Statute in that instance, rests with the President, subject to the concurrence of the
Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or
withholding the ratification. And concomitant with this treaty-making power of the President is
his or her prerogative to refuse to submit a treaty to the Senate; or having secured the latter’s
consent to the ratification of the treaty, refuse to ratify it.68 This prerogative, the Court
hastened to add, is the President’s alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to
the Rome Statute. Under Art. 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 the law of the land," the Court is further impressed to perceive the Rome
Statute as declaratory of customary international law. In other words, the Statute embodies
principles of law which constitute customary international law or custom and for which reason
it assumes the status of an enforceable domestic law in the context of the aforecited
constitutional provision. As a corollary, it is argued that any derogation from the Rome Statute
principles cannot be undertaken via a mere executive agreement, which, as an exclusive act
of the executive branch, can only implement, but cannot amend or repeal, an existing law.
The Agreement, so the argument goes, seeks to frustrate the objects of the principles of law
or alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers the Agreement
inefficacious, unless it is embodied in a treaty duly ratified with the concurrence of the
Senate, the theory being that a Senate- ratified treaty partakes of the nature of a municipal
law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and the
status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of
the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that the Agreement
does not amend or is repugnant to RA 9851. For another, the view does not clearly state
what precise principles of law, if any, the Agreement alters. And for a third, it does not
demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the
principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the
former merely reinforces the primacy of the national jurisdiction of the US and the Philippines
in prosecuting criminal offenses committed by their respective citizens and military personnel,
among others. The jurisdiction of the ICC pursuant to the Rome Statute over high crimes
indicated thereat is clearly and unmistakably complementary to the national criminal
jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international
humanitarian law, genocide and other crimes against humanity;70 (2) provides penal
sanctions and criminal liability for their commission;71 and (3) establishes special courts for
the prosecution of these crimes and for the State to exercise primary criminal jurisdiction.72
Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the
Philippine State to surrender to the proper international tribunal those persons accused of
crimes sanctioned under said law if it does not exercise its primary jurisdiction to prosecute
such persons. This view is not entirely correct, for the above quoted proviso clearly provides
discretion to the Philippine State on whether to surrender or not a person accused of the
crimes under RA 9851. The statutory proviso uses the word "may." It is settled doctrine in
statutory construction that the word "may" denotes discretion, and cannot be construed as
having mandatory effect.73 Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.1avvphi1
Besides, even granting that the surrender of a person is mandatorily required when the
Philippines does not exercise its primary jurisdiction in cases where "another court or
international tribunal is already conducting the investigation or undertaking the prosecution of
such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said
legal proviso aptly provides that the surrender may be made "to another State pursuant to the
applicable extradition laws and treaties." The Agreement can already be considered a treaty
following this Court’s decision in Nicolas v. Romulo74 which cited Weinberger v. Rossi.75 In
Nicolas, We held that "an executive agreement is a ‘treaty’ within the meaning of that word in
international law and constitutes enforceable domestic law vis-à-vis the United States."76
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law,
on the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus, the
Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run
counter to Sec. 17 of RA 9851.
The view’s reliance on Suplico v. 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] cannot amend or repeal prior laws."78 Hence, this argument finds no application
in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument
cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for
the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an
extraditable offense if it is punishable under the laws in both Contracting Parties x x x,"79 and
thereby concluding that while the Philippines has criminalized under RA 9851 the acts
defined in the Rome Statute as war crimes, genocide and other crimes against humanity,
there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the
US, a person cannot be tried in the federal courts for an international crime unless Congress
adopts a law defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes mentioned
earlier. In fact, as early as October 2006, the US enacted a law criminalizing war crimes.
Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA)
provides for the criminal offense of "war crimes" which is similar to the war crimes found in
both the Rome Statute and RA 9851, thus:
(a) Offense – Whoever, whether inside or outside the United States, commits a war crime, in
any of the circumstances described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death results to the victim, shall also
be subject to the penalty of death.
(b) Circumstances – The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed Forces
of the United States or a rational 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;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).81
Arguing further, another view has been advanced that the current US laws do not cover every
crime listed within the jurisdiction of the ICC and that there is a gap between the definitions of
the different crimes under the US laws versus the Rome Statute. The view used a report
written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military and the
International Criminal Court," as its basis.
At the outset, it should be pointed out that the report used may not have any weight or value
under international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists
the sources of international law, as follows: (1) international conventions, whether general or
particular, establishing rules expressly recognized by the contesting states; (2) international
custom, as evidence of a general practice accepted as law; (3) the general principles of law
recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law. The report does not fall under any of
the foregoing enumerated sources. It cannot even be considered as the "teachings of highly
qualified publicists." A highly qualified publicist is a scholar of public international law and the
term usually refers to legal scholars or "academic writers."82 It has not been shown that the
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:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
§1091. Genocide
(a) Basic Offense – Whoever, whether in the time of peace or in time of war and with specific
intent to destroy, in whole or in substantial part, a national, ethnic, racial or religious group as
such–
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group
through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical destruction
of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).
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:
xxxx
(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does
not apply to situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an
international character, within the established framework of international law, namely, any of
the following acts: x x x.
(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
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 necessitates, the subjective element.102
State practice refers to the continuous repetition of the same or similar kind of acts or norms
by States.103 It is demonstrated upon the existence of the following elements: (1) generality;
(2) uniformity and consistency; and (3) duration.104 While, opinio juris, the psychological
element, requires that the state practice or norm "be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it."105
"The term ‘jus cogens’ means the ‘compelling law.’"106 Corollary, "a jus cogens norm holds
the highest hierarchical position among all other customary norms and principles."107 As a
result, jus cogens norms are deemed "peremptory and non-derogable."108 When applied to
international crimes, "jus cogens crimes have been deemed so fundamental to the existence
of a just international legal order that states cannot derogate from them, even by
agreement."109
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may
exercise jurisdiction over an individual who commits certain heinous and widely condemned
offenses, even when no other recognized basis for jurisdiction exists."110 "The rationale
behind this principle is that the crime committed is so egregious that it is considered to be
committed against all members of the international community"111 and thus granting every
State jurisdiction over the crime.112
Therefore, even with the current lack of domestic legislation on the part of the US, it still has
both the doctrine of incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in
the Rome Statute is not declaratory of customary international law.
The first element of customary international law, i.e., "established, widespread, and
consistent practice on the part of States,"113 does not, under the premises, appear to be
obtaining as reflected in this simple reality: As of October 12, 2010, only 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.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among
the different countries in the world that the prosecution of internationally recognized crimes of
genocide, etc. should be handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the psychological
element must be deemed non-existent, for an inquiry on why states behave the way they do
presupposes, in the first place, that they are actually behaving, as a matter of settled and
consistent practice, in a certain manner. This implicitly requires belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.117 Like the first
element, the second element has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent.118 Even further, the Rome
Statute specifically and unequivocally requires that: "This Statute is subject to ratification,
acceptance or approval by signatory States."119 These clearly negate the argument that
such has already attained customary status.
More importantly, an act of the executive branch with a foreign government must be afforded
great respect. The power to enter into executive agreements has long been recognized to be
lodged with the President. As We held in Neri v. Senate Committee on Accountability of
Public Officers and Investigations, "[t]he power to enter into an executive agreement is in
essence an executive power. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been recognized in
Philippine jurisprudence."120 The rationale behind this principle is the inviolable doctrine of
separation of powers among the legislative, executive and judicial branches of the
government. Thus, absent any clear contravention of the law, courts should exercise utmost
caution in declaring any executive agreement invalid.
In light of the above consideration, the position or view that the challenged RP-US Non-
Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED
for lack of merit. No costs.
SO ORDERED
G.R. No. 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.
This is a petition for mandamus filed by petitioners to compel the
Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed
copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines
for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.
The Rome Statute established the International Criminal Court which "shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern xxx
and shall be complementary to the national criminal jurisdictions."1 Its jurisdiction covers the
crime of genocide, crimes against humanity, war crimes and the crime of aggression as
defined in the Statute.2 The Statute was opened for signature by all states in Rome on July
17, 1998 and had remained open for signature until December 31, 2000 at the United Nations
Headquarters in New York. The Philippines signed the Statute on December 28, 2000
through Charge d’ Affairs Enrique A. Manalo of the Philippine Mission to the United Nations.3
Its provisions, however, require that it be subject to ratification, acceptance or approval of the
signatory states.4
Petitioners filed the instant petition to compel the respondents — the Office of the Executive
Secretary and the Department of Foreign Affairs — to transmit the signed text of the treaty to
the Senate of the Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, it is the duty of the executive department
to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its
discretion with respect to ratification of treaties. Moreover, petitioners submit that the
Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary
international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining
the states to refrain from acts which would defeat the object and purpose of a treaty when
they have signed the treaty prior to ratification unless they have made their intention clear not
to become parties to the treaty.5
The Office of the Solicitor General, commenting for the respondents, questioned the standing
of the petitioners to file the instant suit. It also contended that the petition at bar violates the
rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue
that the executive department has no duty to transmit the Rome Statute to the Senate for
concurrence.
A petition for mandamus may be filed when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station.6 We have held that to be given due course, a
petition for mandamus must have been instituted by a party aggrieved by the alleged inaction
of any tribunal, corporation, board or person which unlawfully excludes said party from the
enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party
in the sense that he possesses a clear legal right to be enforced and a direct interest in the
duty or act to be performed.7 The Court will exercise its power of judicial review only if the
case is brought before it by a party who has the legal standing to raise the constitutional or
legal question. "Legal standing" means a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the government act that
is being challenged. The term "interest" is material interest, an interest in issue and to be
affected by the decree, as distinguished from mere interest in the question involved, or a
mere incidental interest.8
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing
to file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of
the House of Representatives and Chairperson of its Committee on Human Rights; the
Philippine Coalition for the Establishment of the International Criminal Court which is
composed of individuals and corporate entities dedicated to the Philippine ratification of the
Rome Statute; the Task Force Detainees of the Philippines, a juridical entity with the avowed
purpose of promoting the cause of human rights and human rights victims in the country; the
Families of Victims of Involuntary Disappearances, a juridical entity duly organized and
existing pursuant to Philippine Laws with the avowed purpose of promoting the cause of
families and victims of human rights violations in the country; Bianca Hacintha Roque and
Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of the
instant petition, and suing under the doctrine of inter-generational rights enunciated in the
case of Oposa vs. Factoran, Jr.;9 and a group of fifth year working law students from the
University of the Philippines College of Law who are suing as taxpayers.
The question in standing is whether a party has alleged such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult constitutional
questions.10
We find that among the petitioners, only Senator Pimentel has the legal standing to file the
instant suit. The other petitioners maintain their standing as advocates and defenders of
human rights, and as citizens of the country. They have not shown, however, that they have
sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome
Statute to the Senate. Their contention that they will be deprived of their remedies for the
protection and enforcement of their rights does not persuade. The Rome Statute is intended
to complement national criminal laws and courts. Sufficient remedies are available under our
national laws to protect our citizens against human rights violations and petitioners can
always seek redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are
impaired, so is the power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution."11 Thus, legislators have the
standing to maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in their office and are allowed to sue to question the validity of any official action
which they claim infringes their prerogatives as legislators. The petition at bar invokes the
power of the Senate to grant or withhold its concurrence to a treaty entered into by the
executive branch, in this case, the Rome Statute. The petition seeks to order the executive
branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority.
Senator Pimentel, as member of the institution, certainly has the legal standing to assert such
authority of the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the
Rome Statute signed by a member of the Philippine Mission to the United Nations even
without the signature of the President.
We rule in the negative.
In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the country’s sole representative with foreign
nations.12 As the chief architect of foreign policy, the President acts as the country’s
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the business of
foreign relations.13 In the realm of treaty-making, the President has the sole authority to
negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties,
the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all
the members of the Senate for the validity of the treaty entered into by him. Section 21,
Article VII of the 1987 Constitution provides that "no treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the Members of the
Senate." The 1935 and the 1973 Constitution also required the concurrence by the legislature
to the treaties entered into by the executive. Section 10 (7), Article VII of the 1935
Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the
Members of the Senate, to make treaties xxx.
Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and
effective unless concurred in by a majority of all the Members of the Batasang Pambansa.
The participation of the legislative branch in the treaty-making process was deemed essential
to provide a check on the executive in the field of foreign relations.14 By requiring the
concurrence of the legislature in the treaties entered into by the President, the Constitution
ensures a healthy system of checks and balance necessary in the nation’s pursuit of political
maturity and growth.15
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to
mean that the power to ratify treaties belongs to the Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in
this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and
exchange of the instruments of ratification. The treaty may then be submitted for registration
and publication under the U.N. Charter, although this step is not essential to the validity of the
agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually assigns this
task to his authorized representatives. These representatives are provided with credentials
known as full powers, which they exhibit to the other negotiators at the start of the formal
discussions. It is standard practice for one of the parties to submit a draft of the proposed
treaty which, together with the counter-proposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted, depending on the issues involved,
and may even "collapse" in case the parties are unable to come to an agreement on the
points under consideration.
If and when the negotiators finally decide on the terms of the treaty, the same is opened for
signature. This step is primarily intended as a means of authenticating the instrument and for
the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate
the final consent of the state in cases where ratification of the treaty is required. The
document is ordinarily signed in accordance with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy which he will bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts
the provisions of a treaty concluded by its representatives. The purpose of ratification is to
enable the contracting states to examine the treaty more closely and to give them an
opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this
reason that most treaties are made subject to the scrutiny and consent of a department of the
government other than that which negotiated them.
xxx
The last step in the treaty-making process is the exchange of the instruments of ratification,
which usually also signifies the effectivity of the treaty unless a different date has been
agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is
embodied in the treaty, the instrument is deemed effective upon its signature.16 [emphasis
supplied]
Petitioners’ arguments equate the signing of the treaty by the Philippine representative with
ratification. It should be underscored that the signing of the treaty and the ratification are two
separate and distinct steps in the treaty-making process. As earlier discussed, the signature
is primarily intended as a means of authenticating the instrument and as a symbol of the good
faith of the parties. It is usually performed by the state’s authorized representative in the
diplomatic mission. Ratification, on the other hand, is the formal act by which a state confirms
and accepts the provisions of a treaty concluded by its representative. It is generally held to
be an executive act, undertaken by the head of the state or of the government.17 Thus,
Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997
provides the guidelines in the negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine representative, the same
shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs
shall then prepare the ratification papers and forward the signed copy of the treaty to the
President for ratification. After the President has ratified the treaty, the Department of Foreign
Affairs shall submit the same to the Senate for concurrence. Upon receipt of the concurrence
of the Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty
to render it effective. Section 7 of Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive
Agreement. — The domestic requirements for the entry into force of a treaty or an executive
agreement, or any amendment thereto, shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs after
their signing for the preparation of the ratification papers. The transmittal shall include the
highlights of the agreements and the benefits which will accrue to the Philippines arising from
them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency,
shall transmit the agreements to the President of the Philippines for his ratification. The
original signed instrument of ratification shall then be returned to the Department of Foreign
Affairs for appropriate action.
B. Treaties.
i. All treaties, regardless of their designation, shall comply with the requirements provided in
sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the
Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for
concurrence in the ratification by the President. A certified true copy of the treaties, in such
numbers as may be required by the Senate, together with a certified true copy of the
ratification instrument, shall accompany the submission of the treaties to the Senate.
ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall
comply with the provision of the treaties in effecting their entry into force.
Petitioners’ submission that the Philippines is bound under treaty law and international law to
ratify the treaty which it has signed is without basis. The signature does not signify the final
consent of the state to the treaty. It is the ratification that binds the state to the provisions
thereof. In fact, the Rome Statute itself requires that the signature of the representatives of
the states be subject to ratification, acceptance or approval of the signatory states.
Ratification is the act by which the provisions of a treaty are formally confirmed and approved
by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be
bound by the provisions of such treaty. After the treaty is signed by the state’s representative,
the President, being accountable to the people, is burdened with the responsibility and the
duty to carefully study the contents of the treaty and ensure that they are not inimical to the
interest of the state and its people. Thus, the President has the discretion even after the
signing of the treaty by the Philippine representative whether or not to ratify the same. The
Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain
this power of the head of states. If that were so, the requirement of ratification of treaties
would be pointless and futile. It has been held that a state has no legal or even moral duty to
ratify a treaty which has been signed by its plenipotentiaries.18 There is no legal obligation to
ratify a treaty, but it goes without saying that the refusal must be based on substantial
grounds and not on superficial or whimsical reasons. Otherwise, the other state would be
justified in taking offense.19
It should be emphasized that under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The role of the Senate, however, is
limited only to giving or withholding its consent, or concurrence, to the ratification.20 Hence, it
is within the authority of the President to refuse to submit a treaty to the Senate or, having
secured its consent for its ratification, refuse to ratify it.21 Although the refusal of a state to
ratify a treaty which has been signed in its behalf is a serious step that should not be taken
lightly,22 such decision is within the competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions
seeking to enjoin the President in the performance of his official duties.23 The Court,
therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its
jurisdiction to compel the executive branch of the government to transmit the signed text of
Rome Statute to the Senate.
IN VIEW WHEREOF, the petition is DISMISSED.
SO ORDERED.
1. G.R. No. L-14279 October 31, 1961
THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS,
petitioners,vs. EASTERN SEA TRADING, respondent.
Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the
Commissioner of Customs.
Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic
which arrived at the Port of Manila from August 25 to September 7, 1954. Some shipments
came from Japan and others from Hong Kong. In as much as none of the shipments had the
certificate required by Central Bank Circulars Nos. 44 and 45 for the release thereof, the
goods thus imported were seized and subjected to forfeiture proceedings for alleged
violations of section 1363(f) of the Revised Administrative Code, in relation to the
aforementioned circulars of the Central Bank. In due course, the Collector of Customs of
Manila rendered a decision on September 4, 1956, declaring said goods forfeited to the
Government and — the goods having been, in the meantime, released to the consignees on
surety bonds, filed by the same, as principal, and the Alto Surety & Insurance Co., Inc., as
surety, in compliance with orders of the Court of First Instance of Manila, in Civil Cases Nos.
23942 and 23852 thereof — directing that the amounts of said bonds be paid, by said
principal and surety, jointly and severally, to the Bureau of Customs, within thirty (30) days
from notice.
On appeal taken by the consignee, said decision was affirmed by the Commissioner of
Customs on December 27, 1956. Subsequently, the consignee sought a review of the
decision of said two (2) officers by the Court of Tax Appeals, which reversed the decision of
the Commissioner of Customs and ordered that the aforementioned bonds be cancelled and
withdrawn. Hence, the present petition of the Commissioner of Customs for review of the
decision of the Court of Tax Appeals.
The latter is based upon the following premises, namely: that the Central Bank has no
authority to regulate transactions not involving foreign exchange; that the shipments in
question are in the nature of "no-dollar" imports; that, as such, the aforementioned shipments
do not involve foreign exchange; that, insofar as a Central Bank license and a certificate
authorizing the importation or release of the goods under consideration are required by
Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the seizure and
forfeiture of the goods imported from Japan cannot be justified under Executive Order No.
328,1 not only because the same seeks to implement an executive agreement 2 — extending
the effectivity of our3 Trades and Financial Agreements4 with Japan — which (executive
agreement), it believed, is of dubious validity, but, also, because there is no governmental
agency authorized to issue the import license required by the aforementioned executive
order.
The authority of the Central Bank to regulate no-dollar imports and the validity of the
aforementioned Circulars Nos. 44, and 45 have already been passed upon and repeatedly
upheld by this Court (Pascual vs. Commissioner of Customs, L-10979 [June 30, 1959]; Acting
Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959] Commissioner of Customs
vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs. Serree Investment
Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-14274
[November 29, 1960]), for the reason that the broad powers of the Central Bank, under its
charter, to maintain our monetary stability and to preserve the international value of our
currency, under section 2 of Republic Act No. 265, in relation to section 14 of said Act —
authorizing the bank to issue such rules and regulations as it may consider necessary for the
effective discharge of the responsibilities and the exercise of the powers assigned to the
Monetary Board and to the Central Bank — connote the authority to regulate no-dollar
imports, owing to the influence and effect that the same may and do have upon the stability of
our peso and its international value.
The Court of Tax Appeals entertained doubts on the legality of the executive agreement
sought to be implemented by Executive Order No. 328, owing to the fact that our Senate had
not concurred in the making of said executive agreement. The concurrence of said House of
Congress is required by our fundamental law in the making of "treaties" (Constitution of the
Philippines, Article VII, Section 10[7]), which are, however, distinct and different from
"executive agreements," which may be validly entered into without such concurrence.
Treaties are formal documents which require ratification with the approval of two thirds of
the Senate. Executive agreements become binding through executive action without the
need of a vote by the Senate or by Congress.
xxx xxx xxx
. . . the right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and the settlement of
claims. The validity of these has never been seriously questioned by our courts.
xxx xxx xxx
Agreements with respect to the registration of trade-marks have been concluded by the
Executive with various countries under the Act of Congress of March 3, 1881 (21 Stat.
502). Postal conventions regulating the reciprocal treatment of mail matters, money
orders, parcel post, etc., have been concluded by the Postmaster General with various
countries under authorization by Congress beginning with the Act of February 20, 1792 (1
Stat. 232, 239). Ten executive agreements were concluded by the President pursuant to
the McKinley Tariff Act of 1890 (26 Stat. 567, 612), and nine such agreements were
entered into under the Dingley Tariff Act 1897 (30 Stat. 151, 203, 214). A very much
larger number of agreements, along the lines of the one with Rumania previously referred
to, providing for most-favored-nation treatment in customs and related matters have been
entered into since the passage of the Tariff Act of 1922, not by direction of the Act but in
harmony with it.
xxx xxx xxx
International agreements involving political issues or changes of national policy and those
involving international arrangements of a permanent character usually take the form of
treaties. But international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a more
or less temporary nature usually take the form of executive agreements.
xxx xxx xxx
 Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis-Wright Export
Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed.
1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288; Yale
Law Journal, Vol. 15, pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde
on International Law [Revised Edition], Vol. 2, pp. 1405, 1416-1418; Willoughby on the
U.S. Constitutional Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest,
Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407).
(Emphasis supplied.)
In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said
in his work on "The Constitutionality of Trade Agreement Acts":
Agreements concluded by the President which fall short of treaties are commonly
referred to as executive agreements and are no less common in our scheme of
government than are the more formal instruments — treaties and conventions. They
sometimes take the form of exchanges of notes and at other times that of more formal
documents denominated "agreements" time or "protocols". The point where ordinary
correspondence between this and other governments ends and agreements — whether
denominated executive agreements or exchanges of notes or otherwise — begin, may
sometimes be difficult of ready ascertainment. It would be useless to undertake to
discuss here the large variety of executive agreements as such, concluded from time to
time. Hundreds of executive agreements, other than those entered into under the trade-
agreements act, have been negotiated with foreign governments. . . . It would seem to be
sufficient, in order to show that the trade agreements under the act of 1934 are not
anomalous in character, that they are not treaties, and that they have abundant
precedent in our history, to refer to certain classes of agreements heretofore entered into
by the Executive without the approval of the Senate. They cover such subjects as the
inspection of vessels, navigation dues, income tax on shipping profits, the admission of
civil aircraft, customs matters, and commercial relations generally, international claims,
postal matters, the registration of trademarks and copyrights, etcetera. Some of them
were concluded not by specific congressional authorization but in conformity with policies
declared in acts of Congress with respect to the general subject matter, such as tariff
acts; while still others, particularly those with respect of the settlement of claims against
foreign governments, were concluded independently of any legislation." (39 Columbia
Law Review, pp. 651, 755.)
The validity of the executive agreement in question is thus patent. In fact, the so-called Parity
Rights provided for in the Ordinance Appended to our Constitution were, prior thereto, the
subject of an executive agreement, made without the concurrence of two-thirds (2/3) of the
Senate of the United States.
Lastly, the lower court held that it would be unreasonable to require from respondent-appellee
an import license when the Import Control Commission was no longer in existence and,
hence, there was, said court believed, no agency authorized to issue the aforementioned
license. This conclusion is untenable, for the authority to issue the aforementioned licenses
was not vested exclusively upon the Import Control Commission or Administration. Executive
Order No. 328 provided for export or import licenses "from the Central Bank of the Philippines
or the Import Control Administration" or Commission. Indeed, the latter was created only to
perform the task of implementing certain objectives of the Monetary Board and the Central
Bank, which otherwise had to be undertaken by these two (2) agencies. Upon the abolition of
said Commission, the duty to provide means and ways for the accomplishment of said
objectives had merely to be discharged directly by the Monetary Board and the Central Bank,
even if the aforementioned Executive Order had been silent thereon.
WHEREFORE, the decision appealed from is hereby reversed and another one shall be
entered affirming that of the Commissioner of Customs, with cost against respondents
defendant-appellee, Eastern Sea Trading. It is so ordered.
2. [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.
[G.R. No. 138572. October 10, 2000] PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,
AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as
Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as
Secretary of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000] TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners, vs.
JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B. FERNAN,
FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.
[G.R. No. 138680. October 10, 2000] INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila
Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON.
DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000] JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO
SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C.
RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND
NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR
RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND
INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents.
Confronting the Court for resolution in the instant consolidated petitions for certiorari and
prohibition are issues relating to, and borne by, an agreement forged in the turn of the last
century between the Republic of the Philippines and the United States of America -the
Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military Bases
Agreement which formalized, among others, the use of installations in the Philippine territory
by United States military personnel. To further strengthen their defense and security
relationship, the Philippines and the United States entered into a Mutual Defense Treaty on
August 30, 1951. Under the treaty, the parties agreed to respond to any external armed
attack on their territory, armed forces, public vessels, and aircraft. [1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military bases
agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines. [2] With the expiration of the RP-US Military
Bases Agreement, the periodic military exercises conducted between the two countries were
held in abeyance. Notwithstanding, the defense and security relationship between the
Philippines and the United States of America continued pursuant to the Mutual Defense
Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign
Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the complementing
strategic interests of the United States and the Philippines in the Asia-Pacific region. Both
sides discussed, among other things, the possible elements of the Visiting Forces Agreement
(VFA for brevity). Negotiations by both panels on the VFA led to a consolidated draft text,
which in turn resulted to a final series of conferences and negotiations [3] that culminated in
Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the
VFA, which was respectively signed by public respondent Secretary Siazon and Unites
States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign
Affairs, ratified the VFA. [4]
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines, [5] the Instrument of
Ratification, the letter of the President [6] and the VFA, for concurrence pursuant to Section
21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee
on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National
Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and
recommendation. Thereafter, joint public hearings were held by the two Committees. [7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 [8]
recommending the concurrence of the Senate to the VFA and the creation of a Legislative
Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a
two-thirds (2/3) vote [9] of its members. Senate Resolution No. 443 was then re-numbered as
Senate Resolution No. 18. [10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for
regulating the circumstances and conditions under which US Armed Forces and defense
personnel may be present in the Philippines, and is quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by
the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States armed
forces or who are accompanying the United States armed forces, such as employees of the
American Red Cross and the United Services Organization.
Article II
Respect for Law
It is the duty of the United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement,
and, in particular, from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities
covered by this agreement.
2. United States military personnel shall be exempt from passport and visa regulations
upon entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall be required
in respect of United States military personnel who enter the Philippines:
 (a) personal identity card issued by the appropriate United States authority showing
full name, date of birth, rank or grade and service number (if any), branch of
service and photograph;
(b) individual or collective document issued by the appropriate United States
authority, authorizing the travel or visit and identifying the individual or group as
United States military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a declaration
of health, and when required by the cognizant representative of the
Government of the Philippines, shall conduct a quarantine inspection and will
certify that the aircraft or vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft or United States vessels or
cargoes thereon shall be conducted by the United States commanding officer
in accordance with the international health regulations as promulgated by the
World Health Organization, and mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa requirements but shall
present, upon demand, valid passports upon entry and departure of the Philippines.
5. If the Government of the Philippines has requested the removal of any United States
personnel from its territory, the United States authorities shall be responsible for
receiving the person concerned within its own territory or otherwise disposing of said
person outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving permit or
license issued by the appropriate United States authority to United States personnel
for the operation of military or official vehicles.
2. Vehicles owned by the Government of the United States need not be registered, but
shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with
respect to offenses committed within the Philippines and punishable under the law
of the Philippines.
(b) United States military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on them by the
military law of the United States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security
of the Philippines, punishable under the laws of the Philippines, but not under
the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the security
of the United States, punishable under the laws of the United States, but not
under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense
relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national
defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall
apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over
all offenses committed by United States personnel, except in cases provided for in
paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of the United
States in relation to.
(1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official
duty.
(c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to
maintain good order and discipline among their forces, Philippine authorities will,
 upon request by the United States, waive their primary right to exercise jurisdiction
except in cases of particular importance to the Philippines. If the Government of
the Philippines determines that the case is of particular importance, it shall
communicate such determination to the United States authorities within twenty
(20) days after the Philippine authorities receive the United States request.
(e) When the United States military commander determines that an offense
charged by authorities of the Philippines against United states personnel arises
out of an act or omission done in the performance of official duty, the commander
will issue a certificate setting forth such determination. This certificate will be
transmitted to the appropriate authorities of the Philippines and will constitute
sufficient proof of performance of official duty for the purposes of paragraph
3(b)(2) of this Article. In those cases where the Government of the Philippines
believes the circumstances of the case require a review of the duty certificate,
United States military authorities and Philippine authorities shall consult
immediately. Philippine authorities at the highest levels may also present any
information bearing on its validity. United States military authorities shall take full
account of the Philippine position. Where appropriate, United States military
authorities will take disciplinary or other action against offenders in official duty
cases, and notify the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall
notify the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other
of the disposition of all cases in which both the authorities of the Philippines and
the United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and United
States shall assist each other in the arrest of United States personnel in the Philippines and
in handling them over to authorities who are to exercise jurisdiction in accordance with the
provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the arrest or
detention of United States personnel who are subject of Philippine primary or exclusive
jurisdiction. Philippine authorities shall promptly notify United States military authorities of the
arrest or detention of any United States personnel.
6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so request,
from the commission of the offense until completion of all judicial proceedings. United States
military authorities shall, upon formal notification by the Philippine authorities and without
delay, make such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been charged in
extraordinary cases, the Philippine Government shall present its position to the United States
Government regarding custody, which the United States Government shall take into full
account. In the event Philippine judicial proceedings are not completed within one year, the
United States shall be relieved of any obligations under this paragraph. The one-year period
will not include the time necessary to appeal. Also, the one-year period will not include any
time during which scheduled trial procedures are delayed because United States authorities,
after timely notification by Philippine authorities to arrange for the presence of the accused,
fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall
assist each other in the carrying out of all necessary investigation into offenses and shall
cooperate in providing for the attendance of witnesses and in the collection and production of
evidence, including seizure and, in proper cases, the delivery of objects connected with an
offense.
8. When United States personnel have been tried in accordance with the provisions of
this Article and have been acquitted or have been convicted and are serving, or have served
their sentence, or have had their sentence remitted or suspended, or have been pardoned,
they may not be tried again for the same offense in the Philippines. Nothing in this paragraph,
however, shall prevent United States military authorities from trying United States personnel
for any violation of rules of discipline arising from the act or omission which constituted an
offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards established by the law
of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made
against them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such
witnesses;
(d) To present evidence in their defense and to have compulsory process for
obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the
same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States
authorities, and to have such authorities present at all judicial proceedings. These
 proceedings shall be public unless the court, in accordance with Philippine laws,
excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States personnel shall be
carried out in facilities agreed on by appropriate Philippine and United States authorities.
United States Personnel serving sentences in the Philippines shall have the right to visits and
material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary
jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious courts.
Article VI
Claims
1. Except for contractual arrangements, including United States foreign military sales letters
of offer and acceptance and leases of military equipment, both governments waive any and
all claims against each other for damage, loss or destruction to property of each others armed
forces or for death or injury to their military and civilian personnel arising from activities to
which this agreement applies.
2. For claims against the United States, other than contractual claims and those to which
paragraph 1 applies, the United States Government, in accordance with United States law
regarding foreign claims, will pay just and reasonable compensation in settlement of
meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of
United States personnel, or otherwise incident to the non-combat activities of the United
States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property imported
into or acquired in the Philippines by or on behalf of the United States armed forces in
connection with activities to which this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such property shall remain with the United
States, which may remove such property from the Philippines at any time, free from export
duties, taxes, and other similar charges. The exemptions provided in this paragraph shall also
extend to any duty, tax, or other similar charges which would otherwise be assessed upon
such property after importation into, or acquisition within, the Philippines. Such property may
be removed from the Philippines, or disposed of therein, provided that disposition of such
property in the Philippines to persons or entities not entitled to exemption from applicable
taxes and duties shall be subject to payment of such taxes, and duties and prior approval of
the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for the
personal use of United States personnel may be imported into and used in the Philippines
free of all duties, taxes and other similar charges during the period of their temporary stay in
the Philippines. Transfers to persons or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of the appropriate Philippine authorities
including payment by the recipient of applicable duties and taxes imposed in accordance with
the laws of the Philippines. The exportation of such property and of property acquired in the
Philippines by United States personnel shall be free of all Philippine duties, taxes, and other
similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines in accordance with procedures stipulated
in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines upon
approval of the Government of the Philippines. The movement of vessels shall be in
accordance with international custom and practice governing such vessels, and such agreed
implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not
be subject to the payment of landing or port fees, navigation or over flight charges, or tolls or
other use charges, including light and harbor dues, while in the Philippines. Aircraft operated
by or for the United States armed forces shall observe local air traffic control regulations while
in the Philippines. Vessels owned or operated by the United States solely on United States
Government non-commercial service shall not be subject to compulsory pilotage at Philippine
ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties have notified each
other in writing through the diplomatic channel that they have completed their
constitutional requirements for entry into force. This agreement shall remain in force until
the expiration of 180 days from the date on which either party gives the other party
notice in writing that it desires to terminate the agreement.
Via these consolidated [11] petitions for certiorari and prohibition, petitioners - as legislators,
non-governmental organizations, citizens and taxpayers - assail the constitutionality of the
VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I
 Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to
question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article
XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed
by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by
reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and
duties for the equipment, materials supplies and other properties imported into or acquired in
the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground that the latter
have not shown any interest in the case, and that petitioners failed to substantiate that they
have sustained, or will sustain direct injury as a result of the operation of the VFA. [12]
Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a matter of
transcendental importance which justifies their standing. [13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must 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
taxpayers suit refers to a case where the act complained of directly involves the illegal
disbursement of public funds derived from taxation. [16] Thus, in Bugnay Const. &
Development Corp. vs. Laron [17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or
injured by the judgment or entitled to the avails of the suit as a real party in interest. Before he
can invoke the power of judicial review, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he will
sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is
not sufficient that he has merely a general interest common to all members of the public.
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the
absence of any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as petitioners-
legislators, do not possess the requisite locus standi to maintain the present suit. While this
Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez, [18] sustained the
legal standing of a member of the Senate and the House of Representatives to question the
validity of a presidential veto or a condition imposed on an item in an appropriation bull, we
cannot, at this instance, similarly uphold petitioners standing as members of Congress, in the
absence of a clear showing of any direct injury to their person or to the institution to which
they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of the
power of Congress to grant tax exemptions, are more apparent than real. While it may be true
that petitioners pointed to provisions of the VFA which allegedly impair their legislative
powers, petitioners failed however to sufficiently show that they have in fact suffered direct
injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in
these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to
bring this suit in the absence of a board resolution from its Board of Governors authorizing its
National President to commence the present action.
Notwithstanding, in view of the paramount importance and the constitutional significance of
the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes
aside the procedural barrier and takes cognizance of the petitions, as we have done in the
early Emergency Powers Cases, [20] where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were involving only an indirect
and general interest shared in common with the public. The Court dismissed the objection
that they were not proper parties and ruled that transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing aside, if
we must, technicalities of procedure. We have since then applied the exception in many
other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, 175 SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, [21] Daza
vs. Singson, [22] and Basco vs. Phil. Amusement and Gaming Corporation, [23] where
we emphatically held:
Considering however the importance to the public of the case at bar, and in keeping with the
Courts duty, under the 1987 Constitution, to determine whether or not the other branches of
the government have kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., [24] thisCourt ruled that in
cases of transcendental importance, the Court may relax the standing requirements and
allow a suit to prosper even where there is no direct injury to the party claiming the
right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the departments of the government a
becoming respect for each others acts, [25] this Court nevertheless resolves to take
cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the senate of its constitutional power to
concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering
that the VFA has for its subject the presence of foreign military troops in the Philippines.
Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as
the VFA is not a basing arrangement but an agreement which involves merely the temporary
visits of United States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the
Senate on treaties or international agreements. Section 21, Article VII, which herein
respondents invoke, reads:
No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by the senate
and, when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other contracting
State.
Section 21, Article VII deals with treatise or international agreements in general, in which
case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required
to make the subject treaty, or international agreement, valid and binding on the part of the
Philippines. This provision lays down the general rule on treatise or international agreements
and applies to any form of treaty with a wide variety of subject matter, such as, but not limited
to, extradition or tax treatise or those economic in nature. All treaties or international
agreements entered into by the Philippines, regardless of subject matter, coverage, or
particular designation or appellation, requires the concurrence of the Senate to be valid and
effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which
involve the presence of foreign military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the requisites to render compliance
with the constitutional requirements and to consider the agreement binding on the
Philippines. Section 25, Article XVIII further requires that foreign military bases, troops, or
facilities may be allowed in the Philippines only by virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in a national referendum held for that purpose
if so required by Congress, and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each other,
actually share some common ground. These constitutional provisions both embody phrases
in the negative and thus, are deemed prohibitory in mandate and character. In particular,
Section 21 opens with the clause No treaty x x x, and Section 25 contains the phrase shall
not be allowed. Additionally, in both instances, the concurrence of the Senate is
indispensable to render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21,
Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article
XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to
comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops
and personnel visiting the Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation
and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops, or facilities, should apply in the instant case. To a certain extent and in
a limited sense, however, the provisions of section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of determining the number of votes required to
obtain the valid concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the
same statute a particular enactment and also a general one which, in its most comprehensive
sense, would include what is embraced in the former, the particular enactment must be
operative, and the general enactment must be taken to affect only such cases within its
general language which are not within the provision of the particular enactment. [26]
In Leveriza vs. Intermediate Appellate Court, [27] we enunciated:
x x x that another basic principle of statutory construction mandates that general legislation
must give way to a special legislation on the same subject, and generally be so interpreted as
to embrace only cases in which the special provisions are not applicable (Sto. Domingo vs.
de los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De
Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal theoretical
application to a particular case, the one designed therefor specially should prevail (Wil
Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution makes no distinction between
transient and permanent. Certainly, we find nothing in Section 25, Article XVIII that requires
foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional provision reveals that the
proscription covers foreign military bases, troops, or facilities. Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases being
established. The clause does not refer to foreign military bases, troops, or facilities
collectively but treats them as separate and independent subjects. The use of comma and the
disjunctive word or clearly signifies disassociation and independence of one thing from the
others included in the enumeration, [28] such that, the provision contemplates three different
situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign
troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of
Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the deliberations
of the 1986 Constitutional Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the three-
bases, troops or facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers
three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
some. We just want to cover everything. [29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for
months and years without returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of military aircraft but also of
military personnel and facilities. Besides, vessels are mobile as compared to a land-based
military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section
25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the
treaty must be duly concurred in by the Senate and, when so required by congress, ratified
by a majority of the votes cast by the people in a national referendum; and (c) recognized as
a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under the general requirement in Section 21, Article
VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-
thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply
provides that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the
Senate is clearly required so that the concurrence contemplated by law may be validly
obtained and deemed present. While it is true that Section 25, Article XVIII requires, among
other things, that the treaty-the VFA, in the instant case-be duly concurred in by the Senate, it
is very true however that said provision must be related and viewed in light of the clear
mandate embodied in Section 21, Article VII, which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the
members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to
section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be construed in
relation to the provisions of Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25, Article XVIII means that at least
two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA
in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of
twenty-four (24) Senators. [30] Without a tinge of doubt, two-thirds (2/3) of this figure, or not
less than sixteen (16) members, favorably acting on the proposal is an unquestionable
compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact
that there were actually twenty-three (23) incumbent Senators at the time the voting was
made, [31] will not alter in any significant way the circumstance that more than two-thirds of
the members of the Senate concurred with the proposed VFA, even if the two-thirds vote
requirement is based on this figure of actual members (23). In this regard, the fundamental
law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to
render compliance with the strict constitutional mandate of giving concurrence to the subject
treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article
XVIII, means that the VFA should have the advice and consent of the United States Senate
pursuant to its own constitutional process, and that it should not be considered merely an
executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard stating
that the VFA is binding on the United States Government is conclusive, on the point that the
VFA is recognized as a treaty by the United States of America. According to respondents, the
VFA, to be binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that the other
contracting party accepts or acknowledges the agreement as a treaty. [32] To require the
other contracting state, the United States of America in this case, to submit the VFA to the
United States Senate for concurrence pursuant to its Constitution, [33] is to accord strict
meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance
thus attached to them prevails. Its language should be understood in the sense they have in
common use. [34]
Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a
treaty. [35] To be sure, as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments, and whatever
its particular designation. [36] There are many other terms used for a treaty or international
agreement, some of which are: act, protocol, agreement, compromis d arbitrage, concordat,
convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All
writers, from Hugo Grotius onward, have pointed out that the names or titles of international
agreements included under the general term treaty have little or no legal significance. Certain
terms are useful, but they furnish little more than mere description. [37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding
the use of terms in the present Convention are without prejudice to the use of those terms, or
to the meanings which may be given to them in the internal law of the State.
Thus, in international law, there is no difference between treaties and executive agreements
in their binding effect upon states concerned, as long as the negotiating functionaries have
remained within their powers. [38] International law continues to make no distinction between
treaties and executive agreements: they are equally binding obligations upon nations. [39]
In our jurisdiction, we have recognized the binding effect of executive agreements even
without the concurrence of the Senate or Congress. In Commissioner of Customs vs.
Eastern Sea Trading, [40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the necessity of
subsequent congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.
xxx xxx xxx
Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39 Columbia
Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299
U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315
U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp.
1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law
[revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law,
Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218;
Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis
Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
everything to make it a treaty, then as far as we are concerned, we will accept it as a treaty.
[41]
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to the
terms of the VFA. [42] For as long as the united States of America accepts or acknowledges
the VFA as a treaty, and binds itself further to comply with its obligations under the treaty,
there is indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence
of the Senate should be taken as a clear an unequivocal expression of our nations consent to
be bound by said treaty, with the concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of
the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed. [43] A State may provide in its domestic legislation the process of ratification of a
treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a)
the treaty provides for such ratification, (b) it is otherwise established that the negotiating
States agreed that ratification should be required, (c) the representative of the State has
signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty
subject to ratification appears from the full powers of its representative, or was expressed
during the negotiation. [44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification. [45]
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law, to be
bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution, [46] declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international obligation
devolves upon the state and not upon any particular branch, institution, or individual member
of its government, the Philippines is nonetheless responsible for violations committed by any
branch or subdivision of its government or any official thereof. As an integral part of the
community of nations, we are responsible to assure that our government, Constitution and
laws will carry out our international obligation. [47] Hence, we cannot readily plead the
Constitution as a convenient excuse for non-compliance with our obligations, duties and
responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: Every State has the duty to carry out in good
faith its obligations arising from treaties and other sources of international law, and it may not
invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.
[48]
Equally important is Article 26 of the convention which provides that Every treaty in force is
binding upon the parties to it and must be performed by them in good faith. This is known as
the principle of pacta sunt servanda which preserves the sanctity of treaties and have been
one of the most fundamental principles of positive international law, supported by the
jurisprudence of international tribunals. [49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a power
and performing a task conferred upon him by the Constitution-the power to enter into and
ratify treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these
consolidated cases impute grave abuse of discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section
21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in
an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion of positive duty enjoined or to act at all in
contemplation of law. [50]
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State,
is the sole organ and authority in the external affairs of the country. In many ways, the
President is the chief architect of the nations foreign policy; his dominance in the field of
foreign relations is (then) conceded. [51] Wielding vast powers an influence, his conduct in
the external affairs of the nation, as Jefferson describes, is executive altogether." [52]
As regards the power to enter into treaties or international agreements, the Constitution vests
the same in the President, subject only to the concurrence of at least two-thirds vote of all the
members of the Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the President, in the
lawful exercise of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress
itself is powerless to invade it. [53] Consequently, the acts or judgment calls of the President
involving the VFA-specifically the acts of ratification and entering into a treaty and those
necessary or incidental to the exercise of such principal acts - squarely fall within the sphere
of his constitutional powers and thus, may not be validly struck down, much less calibrated by
this Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in submitting the
same to the Senate for concurrence, acted within the confines and limits of the powers vested
in him by the Constitution. It is of no moment that the President, in the exercise of his wide
latitude of discretion and in the honest belief that the VFA falls within the ambit of Section 21,
Article VII of the Constitution, referred the VFA to the Senate for concurrence under the
aforementioned provision. Certainly, no abuse of discretion, much less a grave, patent and
whimsical abuse of judgment, may be imputed to the President in his act of ratifying the VFA
and referring the same to the Senate for the purpose of complying with the concurrence
requirement embodied in the fundamental law. In doing so, the President merely performed a
constitutional task and exercised a prerogative that chiefly pertains to the functions of his
office. Even if he erred in submitting the VFA to the Senate for concurrence under the
provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution,
still, the President may not be faulted or scarred, much less be adjudged guilty of committing
an abuse of discretion in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the
scope of judicial inquiry into areas normally left to the political departments to decide, such as
those relating to national security, it has not altogether done away with political questions
such as those which arise in the field of foreign relations. [54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred
or has a different view. In the absence of a showing (of) grave abuse of discretion amounting
to lack of jurisdiction, there is no occasion for the Court to exercise its corrective powerIt has
no power to look into what it thinks is apparent error. [55]
As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate [56] performs that power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed
to constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in
the exercise of its discretion and acting within the limits of such power, may not be similarly
faulted for having simply performed a task conferred and sanctioned by no less than the
fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character; [57] the
Senate, as an independent body possessed of its own erudite mind, has the prerogative to
either accept or reject the proposed agreement, and whatever action it takes in the exercise
of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In
this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of
separation of powers and of checks and balances alive and vigilantly ensures that these
cherished rudiments remain true to their form in a democratic government such as ours. The
Constitution thus animates, through this treaty-concurring power of the Senate, a healthy
system of checks and balances indispensable toward our nations pursuit of political maturity
and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom
of a legislative act are beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this
Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the
people - is then without power to conduct an incursion and meddle with such affairs purely
executive and legislative in character and nature. For the Constitution no less, maps out the
distinct boundaries and limits the metes and bounds within which each of the three political
branches of government may exercise the powers exclusively and essentially conferred to it
by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
DISMISSED. SO ORDERED.
3. 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.
This case involves a petition for certiorari and prohibition as well as a petition-in-intervention,
praying that respondents be restrained from proceeding with the so-called "Balikatan 02-1"
and that after due notice and hearing, that judgment be rendered issuing a permanent writ of
injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao
for being illegal and in violation of the Constitution.
The facts are as follows:
Beginning January of this year 2002, personnel from the armed forces of the United States of
America started arriving in Mindanao to take part, in conjunction with the Philippine military, in
"Balikatan 02-1." These so-called "Balikatan" exercises are the largest combined training
operations involving Filipino and American troops. In theory, they are a simulation of joint
military maneuvers pursuant to the Mutual Defense Treaty,1 a bilateral defense agreement
entered into by the Philippines and the United States in 1951.
Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of
any formal agreement relative to the treatment of United States personnel visiting the
Philippines. In the meantime, the respective governments of the two countries agreed to hold
joint exercises on a reduced scale. The lack of consensus was eventually cured when the two
nations concluded the Visiting Forces Agreement (V FA) in 1999.
The entry of American troops into Philippine soil is proximately rooted in the international anti-
terrorism campaign declared by President George W. Bush in reaction to the tragic events
that occurred on September 11, 2001. On that day, three (3) commercial aircrafts were
hijacked, flown and smashed into the twin towers of the World Trade Center in New York City
and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda
("the Base"), a Muslim extremist organization headed by the infamous Osama bin Laden. Of
no comparable historical parallels, these acts caused billions of dollars worth of destruction of
property and incalculable loss of hundreds of lives.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for
certiorari and prohibition, attacking the constitutionality of the joint exercise.2 They were
joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist
organizations, who filed a petition-in-intervention on February 11, 2002.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS
and PARTIDO, on the other hand, aver that certain members of their organization are
residents of Zamboanga and Sulu, and hence will be directly affected by the operations being
conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus
standi citing the unprecedented importance of the issue involved.
On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein
Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs,
presented the Draft Terms of Reference (TOR).3 Five days later, he approved the TOR,
which we quote hereunder:
I. POLICY LEVEL
1. The Exercise shall be consistent with the Philippine Constitution and all its
activities shall be in consonance with the laws of the land and the provisions of the
RP-US Visiting Forces Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United Nations
resolutions against global terrorism as understood by the respective parties.
3. No permanent US basing and support facilities shall be established. Temporary
structures such as those for troop billeting, classroom instruction and messing may
be set up for use by RP and US Forces during the Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors
under the authority of the Chief of Staff, AFP. In no instance will US Forces operate
independently during field training exercises (FTX). AFP and US Unit Commanders
will retain command over their respective forces under the overall authority of the
Exercise Co-Directors. RP and US participants shall comply with operational
instructions of the AFP during the FTX.
5. The exercise shall be conducted and completed within a period of not more than
six months, with the projected participation of 660 US personnel and 3,800 RP
Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and
terminate the Exercise and other activities within the six month Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will be conducted on the
Island of Basilan. Further advising, assisting and training exercises shall be
conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be
for support of the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed
with AFP field, commanders. The US teams shall remain at the Battalion
Headquarters and, when approved, Company Tactical headquarters where they can
observe and assess the performance of the AFP Forces.
8. US exercise participants shall not engage in combat, without prejudice to their right
of self-defense.
9. These terms of Reference are for purposes of this Exercise only and do not create
additional legal obligations between the US Government and the Republic of the
Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting,
advising and training of RP and US Forces with the primary objective of
enhancing the operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local
air traffic regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a country and area briefing at the
start of the Exercise. This briefing shall acquaint US Forces on the culture
and sensitivities of the Filipinos and the provisions of the VF A. The briefing
shall also promote the full cooperation on the part of the RP and US
participants for the successful conduct of the Exercise.
b. RP and US participating forces may share, in accordance with their
respective laws and regulations, in the use of their resources, equipment and
other assets. They will use their respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and
US assets and resources.
d. Legal liaison officers from each respective party shall be appointed by the
Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the
Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp
Aguinaldo, Quezon City.
b. Local media relations will be the concern of the AFP and all public affairs
guidelines shall be jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed jointly
by RP and US Forces in accordance with their respective laws and
regulations, and in consultation with community and local government
officials.
Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and
United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion
between the Vice-President and Assistant Secretary Kelly.4
Petitioners Lim and Ersando present the following arguments:
I. 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 IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF
BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS
SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S.
MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II. NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE
IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK "IF
FIRED UPON".
Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.
In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia,
Lim and Ersando's standing to file suit, the prematurity of the action, as well as the
impropriety of availing of certiorari to ascertain a question of fact. Anent their locus standi, the
Solicitor General argues that first, they may not file suit in their capacities as, taxpayers
inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress'
taxing or spending powers. Second, their being lawyers does not invest them with sufficient
personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v.
Zamora.5 Third, Lim and Ersando have failed to demonstrate the requisite showing of direct
personal injury. We agree.
It is also contended that the petitioners are indulging in speculation. The Solicitor General is
of the view that since the Terms of Reference are clear as to the extent and duration of
"Balikatan 02-1," the issues raised by petitioners are premature, as they are based only on a
fear of future violation of the Terms of Reference. Even petitioners' resort to a special civil
action for certiorari is assailed on the ground that the writ may only issue on the basis of
established facts.
Apart from these threshold issues, the Solicitor General claims that there is actually no
question of constitutionality involved. The true object of the instant suit, it is said, is to obtain
an interpretation of the V FA. The Solicitor General asks that we accord due deference to the
executive determination that "Balikatan 02-1" is covered by the VFA, considering the
President's monopoly in the field of foreign relations and her role as commander-in-chief of
the Philippine armed forces.
Given the primordial importance of the issue involved, it will suffice to reiterate our view on
this point in a related case:
Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of
its sound discretion, brushes aside the procedural barrier and takes
cognizance of the petitions, as we have done in the early Emergency
Powers Cases, where we had occasion to rule:
'x x x ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino
although they were involving only an indirect and general interest shared in
common with the public. The Court dismissed the objection that they were
not proper parties and ruled that 'transcendental importance to the public
of these cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure.' We have since
then applied the exception in many other cases. [citation omitted]
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,
Daza vs. Singson, and Basco vs. Phil, Amusement and Gaming Corporation,
where we emphatically held:
Considering however the importance to the public of the case at bar, and in
keeping with the Court's duty, under the 1987 Constitution, to determine
whether or not the other branches of the government have kept themselves
within the limits of the Constitution and the laws that they have not abused
the discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition. xxx'
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled
that in cases of transcendental importance, the Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to
the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on
the doctrine of separation of powers, which enjoins upon the department of the
government a becoming respect for each other's act, this Court nevertheless resolves
to take cognizance of the instant petition.6
Hence, we treat with similar dispatch the general objection to the supposed prematurity of the
action. At any rate, petitioners' concerns on the lack of any specific regulation on the latitude
of activity US personnel may undertake and the duration of their stay has been addressed in
the Terms of Reference.
The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to
which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for
brevity). The MDT has been described as the "core" of the defense relationship between the
Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and
technological capabilities of our armed forces through joint training with its American
counterparts; the "Balikatan" is the largest such training exercise directly supporting the
MDT's objectives. It is this treaty to which the V FA adverts and the obligations thereunder
which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it
created a vacuum in US-Philippine defense relations, that is, until it was replaced by the
Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of
eleven to three, this Court upheld the validity of the VFA.7 The V FA provides the "regulatory
mechanism" by which "United States military and civilian personnel [may visit] temporarily in
the Philippines in connection with activities approved by the Philippine Government." It
contains provisions relative to entry and departure of American personnel, driving and vehicle
registration, criminal jurisdiction, claims, importation and exportation, movement of vessels
and aircraft, as well as the duration of the agreement and its termination. It is the VFA which
gives continued relevance to the MDT despite the passage of years. Its primary goal is to
facilitate the promotion of optimal cooperation between American and Philippine military
forces in the event of an attack by a common foe.
The first question that should be addressed is whether "Balikatan 02-1" is covered by the
Visiting Forces Agreement. To resolve this, it is necessary to refer to the V FA itself: Not
much help can be had therefrom, unfortunately, since the terminology employed is itself the
source of the problem. The VFA permits United States personnel to engage, on an
impermanent basis, in "activities," the exact meaning of which was left undefined. The
expression is ambiguous, permitting a wide scope of undertakings subject only to the
approval of the Philippine government.8 The sole encumbrance placed on its definition is
couched in the negative, in that United States personnel must "abstain from any activity
inconsistent with the spirit of this agreement, and in particular, from any political activity."9 All
other activities, in other words, are fair game.
We are not left completely unaided, however. The Vienna Convention on the Law of Treaties,
which contains provisos governing interpretations of international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning
to be given to the tenus of the treaty in their context and in the light of its object and
purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the
parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with
the conclusion of the treaty and accepted by the other parties as an
instrument related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between
the parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31 :
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd unreasonable.
It is clear from the foregoing that the cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize the parties' intentions. The
Convention likewise dictates what may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. As explained by a writer on the Convention ,
[t]he Commission's proposals (which were adopted virtually without change by the
conference and are now reflected in Articles 31 and 32 of the Convention) were
clearly based on the view that the text of a treaty must be presumed to be the
authentic expression of the intentions of the parties; the Commission accordingly
came down firmly in favour of the view that 'the starting point of interpretation is the
elucidation of the meaning of the text, not an investigation ab initio into the intentions
of the parties'. This is not to say that the travauxpreparatoires of a treaty , or the
circumstances of its conclusion, are relegated to a subordinate, and wholly
ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on
resort to travaux preparatoires of a treaty was intended by the use of the phrase
'supplementary means of interpretation' in what is now Article 32 of the Vienna
Convention. The distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the
supplementary means do not constitute an alternative, autonomous method of
interpretation divorced from the general rule.10
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of
the word .'activities" arose from accident. In our view, it was deliberately made that way to
give both parties a certain leeway in negotiation. In this manner, visiting US forces may
sojourn in Philippine territory for purposes other than military. As conceived, the joint
exercises may include training on new techniques of patrol and surveillance to protect the
nation's marine resources, sea search-and-rescue operations to assist vessels in distress,
disaster relief operations, civic action projects such as the building of school houses, medical
and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and
training exercise," falls under the umbrella of sanctioned or allowable activities in the context
of the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA
support the conclusion that combat-related activities -as opposed to combat itself -such as
the one subject of the instant petition, are indeed authorized.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the
terms of the VFA, what may US forces legitimately do in furtherance of their aim to provide
advice, assistance and training in the global effort against terrorism? Differently phrased, may
American troops actually engage in combat in Philippine territory? The Terms of Reference
are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not
engage in combat "except in self-defense." We wryly note that this sentiment is admirable
in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf,
cannot reasonably be expected to sit idly while the battle is brought to their very doorstep.
They cannot be expected to pick and choose their targets for they will not have the luxury of
doing so. We state this point if only to signify our awareness that the parties straddle a fine
line, observing the honored legal maxim "Nemo potest facere per alium quod non potest
facere per directum."11 The indirect violation is actually petitioners' worry, that in reality,
"Balikatan 02-1 " is actually a war principally conducted by the United States government,
and that the provision on self-defense serves only as camouflage to conceal the true nature
of the exercise. A clear pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an
offensive war on Philippine territory. We bear in mind the salutary proscription stated in the
Charter of the United Nations, to wit:
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall
act in accordance with the following Principles.
xxx xxx xxx xxx
4. All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.
xxx xxx xxx xxx
In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as
in all other treaties and international agreements to which the Philippines is a party, must be
read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was
concluded way before the present Charter, though it nevertheless remains in effect as a valid
source of international obligation. The present Constitution contains key provisions useful in
determining the extent to which foreign military troops are allowed in Philippine territory.
Thus, in the Declaration of Principles and State Policies, it is provided that:
xxx xxx xxx xxx
SEC. 2. The Philippines renounces war as an instrument of national policy, adopts
the generally accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity
with all nations.
xxx xxx xxx xxx
SEC. 7. The State shall pursue an independent foreign policy. In its relations with
other states the paramount consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self- determination.
SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a
policy of freedom from nuclear weapons in the country.
xxx xxx xxx xxx
The Constitution also regulates the foreign relations powers of the Chief Executive when it
provides that "[n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate."12 Even more pointedly,
the Transitory Provisions state:
Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign
military bases, troops or facilities shall not be allowed in the Philippines except under
a treaty duly concurred in by the Senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting state.
The aforequoted provisions betray a marked antipathy towards foreign military presence in
the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the
Philippines only by way of direct exception. Conflict arises then between the fundamental law
and our obligations arising from international agreements.
A rather recent formulation of the relation of international law vis-a-vis municipal law was
expressed in Philip Morris, Inc. v. Court of Appeals,13 to wit:
xxx Withal, the fact that international law has been made part of the law of the land
does not by any means imply the primacy of international law over national law in the
municipal sphere. Under the doctrine of incorporation as applied in most countries,
rules of international law are given a standing equal, not superior, to national
legislation.
This is not exactly helpful in solving the problem at hand since in trying to find a middle
ground, it favors neither one law nor the other, which only leaves the hapless seeker with an
unsolved dilemma. Other more traditional approaches may offer valuable insights.
From the perspective of public international law, a treaty is favored over municipal law
pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding
upon the parties to it and must be performed by them in good faith."14 Further, a party to a
treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to
perform a treaty."15
Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5
of Article VIII:
The Supreme Court shall have the following powers:
xxx xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
xxx xxx xxx xxx
In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to the police power of
the State. In Gonzales v. Hechanova,17
xxx As regards the question whether an international agreement may be invalidated
by our courts, suffice it to say that the Constitution of the Philippines has clearly
settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the
Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse,
modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court
may provide, final judgments and decrees of inferior courts in -( I) All cases in which
the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question." In other words, our Constitution authorizes the nullification
of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs
counter to an act of Congress.
The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an
offensive war on Philippine territory.
Yet a nagging question remains: are American troops actively engaged in combat alongside
Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to
what petitioners would have us do, we cannot take judicial notice of the events transpiring
down south,18 as reported from the saturation coverage of the media. As a rule, we do not
take cognizance of newspaper or electronic reports per se, not because of any issue as to
their truth, accuracy, or impartiality, but for the simple reason that facts must be established in
accordance with the rules of evidence. As a result, we cannot accept, in the absence of
concrete proof, petitioners' allegation that the Arroyo government is engaged in
"doublespeak" in trying to pass off as a mere training exercise an offensive effort by foreign
troops on native soil. The petitions invite us to speculate on what is really happening in
Mindanao, to issue I make factual findings on matters well beyond our immediate perception,
and this we are understandably loath to do.
It is all too apparent that the determination thereof involves basically a question of fact. On
this point, we must concur with the Solicitor General that the present subject matter is not a fit
topic for a special civil action for certiorari. We have held in too many instances that questions
of fact are not entertained in such a remedy. The sole object of the writ is to correct errors of
jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise
meaning in law, denoting abuse of discretion "too patent and gross as to amount to an
evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in
contemplation of law, or where the power is exercised in an arbitrary and despotic manner by
reason of passion and personal hostility."19
In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts. 20
Under the expanded concept of judicial power under the Constitution, courts are charged with
the duty "to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government."21 From the facts obtaining, we find that the holding of "Balikatan 02-1" joint
military exercise has not intruded into that penumbra of error that would otherwise call for
correction on our part. In other words, respondents in the case at bar have not committed
grave abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without
prejudice to the filing of a new petition sufficient in form and substance in the proper Regional
Trial Court. SO ORDERED.
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 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
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
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:
(a) The exercise shall be consistent with the Constitution and other Philippine laws,
particularly the RP-US Visiting Forces Agreement;
(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:
I. THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE
TREATY (MDT) IN 1951 TO PROVIDE MUTUAL MILITARY ASSISTANCE IN
ACCORDANCE WITH THE CONSTITUTIONAL PROCESSES" OF EACH COUNTRY ONLY
IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A
THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF
BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS
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 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.
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.
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.
Apprehensions over possible catastrophic consequence of US military involvement in our
country are not without historical basis.
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-Philippines," giving credence to claims that the country has become, after
Afghanistan, the second front of the US-led global war on terrorism.
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.
The Filipino soldier has proven himself brave, courageous, fearless and tenacious in the field
of battle 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.
sgd. SANTIAGO M. KAPUNAN
Associate Justice
SEPARATE OPINION*
PANGANIBAN, J:
Through their "Petition for Certiorari and, Prohibition," Arthur D. Lim and Paulino R. Ersanda -
- joined by Intervenors Sanlakas and Partido ng Manggagawa -- plead for the issuance of an
order "restraining the respondents from proceeding or continuing and completing the so-
called 'Balikatan 02-1'" on the ground that the exercise is not sanctioned by any treaty and is,
therefore, allegedly unconstitutional.
Agreeing with the Comment of the Office of the Solicitor General (OSG), the ponencia of Mr.
Justice Sabino R. de Leon Jr. dismisses the Petition essentially on these procedural grounds:
1. As taxpayers, petitioners do not have legal standing or locus standi, because
Balikatan 02-1 "does not involve the exercise by Congress of its taxing or spending
power."
2. Certiorari and prohibition are improper remedies, because petitioners have not
alleged sufficient facts upon which grave abuse of discretion or excess/lack of
jurisdiction could be argued from.
3. The Petition is premature because the alleged violation of the Constitution is
merely speculative, not actual or imminent.
4. Though entitled "Certiorari and Prohibition," the Petition is really one for
declaratory relief which merely seeks an advice or opinion, not a decision. The
Supreme Court has no jurisdiction to issue opinions or advices.
Ordinarily, the above reasons would indeed be sufficient to cause the dismissal of a petition.
However, because of the "transcendental importance" of the main question raised - the
constitutionality of the Balikatan exercise - the Court, I believe, could have exempted this
case from these procedural requirements and tackled the case on the merits, if only to put to
rest the legality of this major event of public interest ill our country and even ill the world. I, for
one, would have voted to set aside these legalistic obstacles, had the Petition presented
enough factual moorings upon which to base an intelligent discussion and disposition of the
legal issues.
For instance, this Court cannot be called upon to decide the factual issues of whether the US
forces are actually engaging the Abu Sayyaf Group ill combat and whether they will stay ill
our country permanently. This Court has no authority to conduct a trial, which can establish
these factual antecedents. Knowing what these antecedents are is necessary to determine
whether the Balikatan violates the Constitution or the Mutual Defense Treaty (MDT) of 1951
or the Visiting Forces Agreement (VFA) of 1999. Verily, the Petition has not even alleged that
the American troops have indeed been unconstitutionally engaged ill actual offensive combat.
The contention that they would necessarily and surely violate the Constitution by participating
ill the joint exercise in Basilan is merely speculative. Petitioners aver:
"American soldiers with high-tech weaponry, disguised as trainers or advisers to
Filipino troops, will go to the war zones of Basilan. Hence, while dubbed as a military
 exercise, it is in reality a continuing combat operation by the AFP against the Abu
Sayyaf to be participated in this time by U.S. troops. It has been admitted that U.S.
'advisers' will accompany Filipino soldiers on patrol in the combat zones.
Also, a base of operation will be in the Sampinit complex which is in the heartland of
the Abu Sayyaf's 'territorial domain' in Basilan island. A shooting war, not just an
exercise, is unavoidable."
That a "shooting war is unavoidable" is conjectural; at best, a conclusion that is not borne by
solid factual moorings. Cases cannot be decided on mere speculation or prophecy .The
Petition claims that while the us troops are "disguised" as "advisers" or "trainors" or
"chaperons," they are actually combatants engaged in an offensive war against local
insurgents. Again, there is no solid factual basis for this statement. It may or may not be true.
The Petition also alleges, again without firm factual support, that the American forces will stay
here indefinitely "for a year or even more depending on the need of the AFP for them."
On the other hand, the OSG assures that petitioners' "apprehensions are belied" by the
Terms of Reference (TOR) approved by both the Philippines and the United States, which
"expressly limit. the conduct and completion of the exercise within a period not exceeding six
" (6) months and prohibits the American participants from engaging in combat, without
prejudice to their right to self-defense."
I stress that cases cannot be decided by this Court on the basis of speculative or hypothetical
assumptions like "If the facts were these, then our decision would be this; on the other hand,
if the facts change, then our ruling would be modified as follows. " Decisions of this Court
especially in certiorari and prohibition cases are issued only if the facts are clear and definite.
As a rule, courts may not consider or judge facts or matters unless they are alleged in the
pleadings and proven by the parties. Our duty is to apply the law to facts that are not in
dispute.
In the absence of firm factual findings that the Americans "will stay indefinitely" in our country
or "are engaged in actual offensive combat with local insurgents" as alleged by petitioners,
respondent Philippine officials who are hosting the Balikatan exercise cannot possibly be
imputed with grave abuse of discretion - an indispensable element of certiorari. 1âwphi1.nêt
True, there are some questions that may genuinely be raised in regard to the Balikatan 02-1
vis-a-vis our Constitution, the MDT and the VFA, like the following:
(1) Is the Abu Sayyaf Group composed of "international terrorists" whose acts and
practices violate the United Nations Charter to such an extent as to pose a threat to
international peace and security?
(2) Is there an "external armed attack" against the Philippines sufficient in force and
magnitude as to justify an invocation of the MDT?
(3) Are the size, the kind, and the location of the Balikatan deployment justified by the
nature, the scope, the duration, and the kind of "activities" allowed under the VFA?
(4) Is it true that the real American objective is the rescue of ASG hostages Martin
and Gracia Burnham, who are both American citizens? If so, is such rescue legally
justified?
(5) Does the Balikatan pose a "political question " which the Supreme Court has no
authority to rule upon, and which may only be decided by our people directly or
through their I elected representatives?
Unfortunately, the foregoing and other similar nagging questions cannot be judicially taken up
and answered until a petition, sufficient in form and substance, is properly presented to the
appropriate court.
FOR THE FOREGOING REASONS, I vote to DISMISS the present Petition.
sgd. ARTEMIO V. PANGANIBAN
Associate Justice
4. G.R. No. 175888 February 11, 2009
UZETTE NICOLAS y SOMBILON, Petitioner, vs. ALBERTO ROMULO, in his capacity as Secretary of
Foreign Affairs; RAUL GONZALEZ, in his capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive
Secretary; RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; SERGIO APOSTOL, in his
capacity as Presidential Legal Counsel; and L/CPL. DANIEL SMITH, Respondents.
G.R. No. 176051 JOVITO R. SALONGA, WIGBERTO, E. TAADA, JOSE DE LA RAMA, EMILIO C. CAPULONG, H. HARRY L.
ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners, vs. DANIEL SMITH, SECRETARY RAUL GONZALEZ,
PRESIDENTIAL LEGAL COUNSEL SERGIO APOSTOL, SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO, The
Special 16th Division of the COURT OF APPEALS, and all persons acting in their capacity, Respondents.
G.R. No. 176222 BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA, represented
by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo; GABRIELA WOMENS PARTY, represented by
Rep. Liza Maza; KILUSANG MAYO UNO (KMU), represented by Elmer Labog; KILUSANG MAGBUBUKID NG PILIPINAS (KMP),
represented by Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo; and THE PUBLIC
INTEREST LAW CENTER, represented by Atty. Rachel Pastores, Petitioners, vs. PRESIDENT GLORIA MACAPAGAL-ARROYO,
in her capacity as concurrent Defense Secretary, EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL GOVERNMENT
SECRETARY RONALDO PUNO, Respondents.
These are petitions for certiorari, etc. as special civil actions and/or for review of the
Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon,
et al., in CA-G.R. SP No. 97212, dated January 2, 2007.
 The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States
Armed Forces. He was charged with the crime of rape committed against a Filipina, petitioner
herein, sometime on November 1, 2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian
Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of
the crime of Rape under Article 266-A of the Revised Penal Code, as amended
by Republic Act 8353, upon a complaint under oath filed by Suzette S. Nicolas,
which is attached hereto and made an integral part hereof as Annex A,
committed as follows:
That on or about the First (1st) day of November 2005,
inside the Subic Bay Freeport Zone, Olongapo City and within
the jurisdiction of this Honorable Court, the above-named
accuseds (sic), being then members of the United States
Marine Corps, except Timoteo L. Soriano, Jr., conspiring,
confederating together and mutually helping one another, with
lewd design and by means of force, threat and intimidation,
with abuse of superior strength and taking advantage of the
intoxication of the victim, did then and there willfully, unlawfully
and feloniously sexually abuse and have sexual intercourse
with or carnal knowledge of one Suzette S. Nicolas, a 22-year
old unmarried woman inside a Starex Van with Plate No.
WKF-162, owned by Starways Travel and Tours, with Office
address at 8900 P. Victor St., Guadalupe, Makati City, and
driven by accused Timoteo L. Soriano, Jr., against the will and
consent of the said Suzette S. Nicolas, to her damage and
prejudice.
CONTRARY TO LAW. [1]
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the
Philippines and the United States, entered into on February 10, 1998, the United States, at its
request, was granted custody of defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales
to the RTC of Makati for security reasons, the United States Government faithfully complied
with its undertaking to bring defendant Smith to the trial court every time his presence was
required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its
Decision, finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to
adduce sufficient evidence against accused S/SGT. CHAD BRIAN
CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC
DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are
hereby ACQUITTED to the crime charged.
The prosecution having presented sufficient evidence against
accused L/CPL. DANIEL J. SMITH, also of the US Marine Corps at the USS
Essex, this Court hereby finds him GUILTY BEYOND REASONABLE DOUBT
of the crime of RAPE defined under Article 266-A, paragraph 1 (a) of the
Revised Penal Code, as amended by R.A. 8353, and, in accordance with
Article 266-B, first paragraph thereof, hereby sentences him to suffer the
penalty of reclusion perpetua together with the accessory penalties provided
for under Article 41 of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces
Agreement entered into by the Philippines and the United States, accused
L/CPL. DANIEL J. SMITH shall serve his sentence in the facilities that shall,
thereafter, be agreed upon by appropriate Philippine and United States
authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J.
SMITH is hereby temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify
complainant SUZETTE S. NICOLAS in the amount of P50,000.00 as
compensatory damages plus P50,000.00 as moral damages.
SO ORDERED. [2]
As a result, the Makati court ordered Smith detained at the Makati jail until further
orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail by
a contingent of Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for detention under
the control of the United States government, provided for under new agreements between the
Philippines and the United States, referred to as the Romulo-Kenney Agreement of December
19, 2006 which states:
The Government of the Republic of the Philippines and the Government of the
United States of America agree that, in accordance with the Visiting Forces
Agreement signed between our two nations, Lance Corporal Daniel J. Smith,
United States Marine Corps, be returned to U.S. military custody at the U.S.
Embassy in Manila.
(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO G. ROMULO
Representative of the United States Representative of the Republic
 of America of the Philippines
DATE: 12-19-06 DATE: December 19, 2006__
and the Romulo-Kenney Agreement of December 22, 2006 which states:
The Department of Foreign Affairs of the Republic of the Philippines and the
Embassy of the United States of America agree that, in accordance with the
Visiting Forces Agreement signed between the two nations, upon transfer of
Lance Corporal Daniel J. Smith, United States Marine Corps, from the Makati
City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building, U.S.
Embassy Compound in a room of approximately 10 x 12 square feet. He will
be guarded round the clock by U.S. military personnel. The Philippine police
and jail authorities, under the direct supervision of the Philippine Department
of Interior and Local Government (DILG) will have access to the place of
detention to ensure the United States is in compliance with the terms of the
VFA.
The matter was brought before the Court of Appeals which decided on January 2, 2007,
as follows:
WHEREFORE, all the foregoing considered, we resolved to DISMISS
the petition for having become moot. [3]
Hence, the present actions.
The petitions were heard on oral arguments on September 19, 2008, after which the
parties submitted their memoranda.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith
because, first of all, the VFA is void and unconstitutional.
This issue had been raised before, and this Court resolved in favor of the
constitutionality of the VFA. This was in Bayan v. Zamora, [4] brought by Bayan, one of
petitioners in the present cases.
Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the
parties, the reversal of the previous ruling is sought on the ground that the issue is of primordial
importance, involving the sovereignty of the Republic, as well as a specific mandate of the
Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the
Philippines and the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other
contracting State.
The reason for this provision lies in history and the Philippine experience in regard to
the United States military bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the
Philippine Commonwealth and, eventually, for the recognition of independence, the United
States agreed to cede to the Philippines all the territory it acquired from Spain under the Treaty
of Paris, plus a few islands later added to its realm, except certain naval ports and/or military
bases and facilities, which the United States retained for itself.
This is noteworthy, because what this means is that Clark and Subic and the other
places in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not
Philippine territory, as they were excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent
allowed by the United States. Furthermore, the RP-US Military Bases Agreement was never
advised for ratification by the United States Senate, a disparity in treatment, because the
Philippines regarded it as a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines;
and with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered
by these bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in
the 1987 Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of
foreign military bases, troops or facilities in Philippine territory shall be equally binding on the
Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the
situation in which the terms and conditions governing the presence of foreign armed forces in
our territory were binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the question is whether
or not the presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed
under a treaty duly concurred in by the Senate xxx and recognized as a treaty by the other
contracting State.
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora, [5] the VFA was duly concurred in by the Philippine
Senate and has been recognized as a treaty by the United States as attested and certified by
the duly authorized representative of the United States government.
The fact that the VFA was not submitted for advice and consent of the United States
Senate does not detract from its status as a binding international agreement or treaty
recognized by the said State. For this is a matter of internal United States law. Notice can be
taken of the internationally known practice by the United States of submitting to its Senate for
advice and consent agreements that are policymaking in nature, whereas those that carry out
or further implement these policymaking agreements are merely submitted to Congress, under
the provisions of the so-called CaseZablocki Act, within sixty days from ratification. [6]
The second reason has to do with the relation between the VFA and the RP-US Mutual
Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with
the concurrence of both the Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states: [7]
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE
PHILIPPINES AND THE UNITED STATES OF AMERICA. Signed at
Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of
the United Nations and their desire to live in peace with all peoples and all
governments, and desiring to strengthen the fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which brought their
two peoples together in a common bond of sympathy and mutual ideals to fight
side-by-side against imperialist aggression during the last war.
Desiring to declare publicly and formally their sense of unity and
their common determination to defend themselves against external
armed attack, so that no potential aggressor could be under the illusion that
either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for collective
defense for the preservation of peace and security pending the
development of a more comprehensive system of regional security in the
Pacific area.
Agreeing that nothing in this present instrument shall be considered or
interpreted as in any way or sense altering or diminishing any existing
agreements or understandings between the Republic of the Philippines and
the United States of America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set forth in the Charter of the
United Nations, to settle any international disputes in which they may be
involved by peaceful means in such a manner that international peace and
security and justice are not endangered and to refrain in their international
relation from the threat or use of force in any manner inconsistent with the
purposes of the United Nations.
ARTICLE II. In order more effectively to achieve the objective of this
Treaty, the Parties separately and jointly by self-help and mutual aid will
maintain and develop their individual and collective capacity to resist
armed attack.
ARTICLE III. The Parties, through their Foreign Ministers or their
deputies, will consult together from time to time regarding the implementation
of this Treaty and whenever in the opinion of either of them the territorial
integrity, political independence or security of either of the Parties is threatened
by external armed attack in the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack in the Pacific
area on either of the parties would be dangerous to its own peace and safety
and declares that it would act to meet the common dangers in accordance with
its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall
be immediately reported to the Security Council of the United Nations. Such
measures shall be terminated when the Security Council has taken the
measures necessary to restore and maintain international peace and security.
ARTICLE V. For the purpose of Article IV, an armed attack on either
of the Parties is deemed to include an armed attack on the metropolitan
territory of either of the Parties, or on the island territories under its jurisdiction
in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.
ARTICLE VI. This Treaty does not affect and shall not be interpreted
as affecting in any way the rights and obligations of the Parties under the
 Charter of the United Nations or the responsibility of the United Nations for the
maintenance of international peace and security.
ARTICLE VII. This Treaty shall be ratified by the Republic of the
Philippines and the United Nations of America in accordance with their
respective constitutional processes and will come into force when instruments
of ratification thereof have been exchanged by them at Manila.
ARTICLE VIII. This Treaty shall remain in force indefinitely. Either
Party may terminate it one year after notice has been given to the other party.
IN WITHNESS WHEREOF the undersigned Plenipotentiaries have
signed this Treaty.
DONE in duplicate at Washington this thirtieth day of August, 1951.
For the Republic of the Philippines:
(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL
For the United States of America:
(Sgd.) DEAN ACHESON
(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY [8]
Clearly, therefore, joint RP-US military exercises for the purpose of developing the
capability to resist an armed attack fall squarely under the provisions of the RP-US Mutual
Defense Treaty. The VFA, which is the instrument agreed upon to provide for the joint RP-US
military exercises, is simply an implementing agreement to the main RP-US Military Defense
Treaty. The Preamble of the VFA states:
The Government of the United States of America and the Government of the
Republic of the Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the
United Nations and their desire to strengthen international and regional
security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August
30, 1951;
Noting that from time to time elements of the United States armed forces
may visit the Republic of the Philippines;
Considering that cooperation between the United States and the Republic
of the Philippines promotes their common security interests;
Recognizing the desirability of defining the treatment of United States
personnel visiting the Republic of the Philippines;
Have agreed as follows: [9]
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it
was not necessary to submit the VFA to the US Senate for advice and consent, but merely to
the US Congress under the CaseZablocki Act within 60 days of its ratification. It is for this
reason that the US has certified that it recognizes the VFA as a binding international agreement,
i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution. [10]
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the
fact that the presence of the US Armed Forces through the VFA is a presence allowed under
the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been
ratified and concurred in by both the Philippine Senate and the US Senate, there is no violation
of the Constitutional provision resulting from such presence.
The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.
The VFA provides that in cases of offenses committed by the members of the US
Armed Forces in the Philippines, the following rules apply:
Article V
Criminal Jurisdiction
xxx
6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside with United
States military authorities, if they so request, from the commission of the
offense until completion of all judicial proceedings. United States military
authorities shall, upon formal notification by the Philippine authorities and
without delay, make such personnel available to those authorities in time for
any investigative or judicial proceedings relating to the offense with which the
person has been charged. In extraordinary cases, the Philippine Government
shall present its position to the United States Government regarding custody,
which the United States Government shall take into full account. In the event
 Philippine judicial proceedings are not completed within one year, the United
States shall be relieved of any obligations under this paragraph. The one year
period will not include the time necessary to appeal. Also, the one year period
will not include any time during which scheduled trial procedures are delayed
because United States authorities, after timely notification by Philippine
authorities to arrange for the presence of the accused, fail to do so.
Petitioners contend that these undertakings violate another provision of the
Constitution, namely, that providing for the exclusive power of this Court to adopt rules of
procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the
transfer of custody of an accused to a foreign power is to provide for a different rule of
procedure for that accused, which also violates the equal protection clause of the Constitution
(Art. III, Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a substantial basis for a
different treatment of a member of a foreign military armed forces allowed to enter our territory
and all other accused. [11]
The rule in international law is that a foreign armed forces allowed to enter ones
territory is immune from local jurisdiction, except to the extent agreed upon. The Status of
Forces Agreements involving foreign military units around the world vary in terms and
conditions, according to the situation of the parties involved, and reflect their bargaining power.
But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of
the sending State only to the extent agreed upon by the parties. [12]
As a result, the situation involved is not one in which the power of this Court to adopt
rules of procedure is curtailed or violated, but rather one in which, as is normally encountered
around the world, the laws (including rules of procedure) of one State do not extend or apply
except to the extent agreed upon to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign armed forces.
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another States territory. On the contrary, the
Constitution states that the Philippines adopts the generally accepted principles of international
law as part of the law of the land. (Art. II, Sec. 2).
Applying, however, the provisions of VFA, the Court finds that there is a different
treatment when it comes to detention as against custody. The moment the accused has to be
detained, e.g., after conviction, the rule that governs is the following provision of the VFA:
Article V
Criminal Jurisdiction
xxx
Sec. 10. The confinement or detention by Philippine authorities of
United States personnel shall be carried out in facilities agreed on by
appropriate Philippines and United States authorities. United States personnel
serving sentences in the Philippines shall have the right to visits and material
assistance.
It is clear that the parties to the VFA recognized the difference between custody during
the trial and detention after conviction, because they provided for a specific arrangement to
cover detention. And this specific arrangement clearly states not only that the detention shall
be carried out in facilities agreed on by authorities of both parties, but also that the detention
shall be by Philippine authorities. Therefore, the Romulo-Kenney Agreements of December 19
and 22, 2006, which are agreements on the detention of the accused in the United States
Embassy, are not in accord with the VFA itself because such detention is not by Philippine
authorities.
Respondents should therefore comply with the VFA and negotiate with representatives
of the United States towards an agreement on detention facilities under Philippine authorities
as mandated by Art. V, Sec. 10 of the VFA.
Next, the Court addresses the recent decision of the United States Supreme Court in
Medellin v. Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered
into by the United States are not automatically part of their domestic law unless these treaties
are self-executing or there is an implementing legislation to make them enforceable.
On February 3, 2009, the Court issued a Resolution, thus:
G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R.
No. 176051 (Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R.
No. 176222 (Bagong Alyansang Makabayan [BAYAN], et al. v.
President Gloria Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are required to submit
within three (3) days a Comment/Manifestation on the following points:
1. What is the implication on the RP-US Visiting Forces Agreement
of the recent US Supreme Court decision in Jose Ernesto Medellin v.
Texas, dated March 25, 2008, to the effect that treaty stipulations that
are not self-executory can only be enforced pursuant to legislation to
carry them into effect; and that, while treaties may comprise
international commitments, they are not domestic law unless
 Congress has enacted implementing statutes or the treaty itself
conveys an intention that it be self-executory and is ratified on these
terms?
2. Whether the VFA is enforceable in the US as domestic law, either
because it is self-executory or because there exists legislation to
implement it.
3. Whether the RP-US Mutual Defense Treaty of August 30, 1951
was concurred in by the US Senate and, if so, is there proof of the US
Senate advice and consent resolution? Peralta, J., no part.
After deliberation, the Court holds, on these points, as follows:
First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself,
because the parties intend its provisions to be enforceable, precisely because the Agreement
is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty.
As a matter of fact, the VFA has been implemented and executed, with the US faithfully
complying with its obligation to produce L/CPL Smith before the court during the trial.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki
Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that
executive agreements registered under this Act within 60 days from their ratification be
immediately implemented. The parties to these present cases do not question the fact that the
VFA has been registered under the Case-Zablocki Act.
In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations
and the Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin
decision. The Convention and the ICJ decision are not self-executing and are not registrable
under the Case-Zablocki Act, and thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US
Senate on March 20, 1952, as reflected in the US Congressional Record, 82 nd Congress,
Second Session, Vol. 98 Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the application of international law in
domestic courts varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF
INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation
whereas others do not.
It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII,
Sec. 25, to require the other contracting State to convert their system to achieve alignment and
parity with ours. It was simply required that the treaty be recognized as a treaty by the other
contracting State. With that, it becomes for both parties a binding international obligation and
the enforcement of that obligation is left to the normal recourse and processes under
international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi, [13] an
executive agreement is a treaty within the meaning of that word in international law and
constitutes enforceable domestic law vis--vis the United States. Thus, the US Supreme Court
in Weinberger enforced the provisions of the executive agreement granting preferential
employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
1. Art. II, Sec. 2 treaties These are advised and consented to by the US
Senate in accordance with Art. II, Sec. 2 of the US Constitution.
2. ExecutiveCongressional Agreements: These are joint agreements of the
President and Congress and need not be submitted to the Senate.
3. Sole Executive Agreements. These are agreements entered into by the
President. They are to be submitted to Congress within sixty (60) days of
ratification under the provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be implemented.
As regards the implementation of the RP-US Mutual Defense Treaty, military aid or
assistance has been given under it and this can only be done through implementing legislation.
The VFA itself is another form of implementation of its provisions.
WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals
Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces
Agreement (VFA) between the Republic of the Philippines and the United States, entered into
on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of
December 19 and 22, 2006 are DECLARED not in accordance with the VFA, and respondent
Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States
representatives for the appropriate agreement on detention facilities under Philippine
authorities as provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be
maintained until further orders by this Court.
The Court of Appeals is hereby directed to resolve without delay the related matters
pending therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from
the judgment of conviction.
No costs. SO ORDERED.
G.R. No. 212426, January 12, 2016
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 CASINO, Petitioners, v. EXECUTIVE
PAQUITO N. DEPARTMENT DEFENSE VOLTAIRE DEPARTMENT SECRETARY OCHOA, JR., OF NATIONAL SECRETARY
GAZMIN, 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
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, v. 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.
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., Petitioners-in-Intervention.
The petitions1 before this Court question the constitutionality of the Enhanced Defense
Cooperation Agreement (EDCA) between the Republic of the Philippines and the United
States of America (U.S.). Petitioners allege that respondents committed grave abuse of
discretion amounting to lack or excess of jurisdiction when they entered into EDCA with the
U.S.,2 claiming that the instrument violated multiple constitutional provisions. 3 In reply,
respondents argue that petitioners lack standing to bring the suit. To support the legality of
their actions, respondents invoke the 1987 Constitution, treaties, and judicial precedents. 4
A proper analysis of the issues requires this Court to lay down at the outset the basic
parameters of the constitutional powers and roles of the President and the Senate in respect
of the above issues. A more detailed discussion of these powers and roles will be made in the
latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE PRESIDENT:
DEFENSE, FOREIGN RELATIONS, AND EDCA
A. The prime Duty of the Senate 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 ako ng Diyos.
— Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang
Batas5cralawlawlibrary
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:chanRoblesvirtualLawlibrary
The prime duty of the Government is to serve and protect the people. The Government
may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be
required, under conditions provided by law, to render personal military or civil service.
(Emphases supplied)
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
cralawlawlibrary
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.
The power and duty to conduct
foreign relations
The President also carries the mandate of being the sole organ in the conduct of foreign
relations.15 Since every state has the capacity to interact with and engage in relations with
other sovereign states,16 it is but logical that every state must vest in an agent the authority to
represent its interests to those other sovereign states.
The conduct of foreign relations is full of complexities and consequences, sometimes with life
and death significance to the nation especially in times of war. It can only be entrusted to that
department of government which can act on the basis of the best available information and
can decide with decisiveness, x x x It is also the President who possesses the most
comprehensive and the most confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on meaningful events all over the world.
He has also unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally accorded a
wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems with equally undesirable
consequences.17cralawlawlibrary
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
U.S. takeover of Spanish colonization
and its military bases, and the transition
to Philippine independence
The presence of the U.S. military forces in the country can be traced to their pivotal victory in
the 1898 Battle of Manila Bay during the Spanish-American War.24 Spain relinquished its
sovereignty over the Philippine Islands in favor of the U.S. upon its formal surrender a few
months later.25 By 1899, the Americans had consolidated a military administration in the
archipelago.26
When it became clear that the American forces intended to impose colonial control over the
Philippine Islands, General Emilio Aguinaldo immediately led the Filipinos into an all-out war
against the U.S.27 The Filipinos were ultimately defeated in the Philippine-American War,
which lasted until 1902 and led to the downfall of the first Philippine Republic. 28 The
Americans henceforth began to strengthen their foothold in the country.29 They took over and
expanded the former Spanish Naval Base in Subic Bay, Zambales, and put up a cavalry post
called Fort Stotsenberg in Pampanga, now known as Clark Air Base.30
When talks of the eventual independence of the Philippine Islands gained ground, the U.S.
manifested the desire to maintain military bases and armed forces in the country. 31 The U.S.
Congress later enacted the Hare-Hawes-Cutting Act of 1933, which required that the
proposed constitution of an independent Philippines recognize the right of the U.S. to
maintain the latter's armed forces and military bases.32 The Philippine Legislature rejected
that law, as it also gave the U.S. the power to unilaterally designate any part of Philippine
territory as a permanent military or naval base of the U.S. within two years from complete
independence.33
The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or the
Philippine Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act, the new
law provided for the surrender to the Commonwealth Government of "all military and other
reservations" of the U.S. government in the Philippines, except "naval reservations and
refueling stations."34 Furthermore, the law authorized the U.S. President to enter into
negotiations for the adjustment and settlement of all questions relating to naval reservations
and fueling stations within two years after the Philippines would have gained independence. 35
Under the Tydings-McDuffie Act, the U.S. President would proclaim the American withdrawal
and surrender of sovereignty over the islands 10 years after the inauguration of the new
government in the Philippines.36 This law eventually led to the promulgation of the 1935
Philippine Constitution.
The original plan to surrender the military bases changed.37 At the height of the Second
World War, the Philippine and the U.S. Legislatures each passed resolutions authorizing their
respective Presidents to negotiate the matter of retaining military bases in the country after
the planned withdrawal of the U.S.38 Subsequently, in 1946, the countries entered into the
Treaty of General Relations, in which the U.S. relinquished all control and sovereignty over
the Philippine Islands, except the areas that would be covered by the American military bases
in the country.39 This treaty eventually led to the creation of the post-colonial legal regime on
which would hinge the continued presence of U.S. military forces until 1991: the Military
Bases Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, and the Mutual
Defense Treaty (MDT) of 1951.40
B. Former legal regime on the
presence of U.S. armed
forces in the territory of an
independent Philippines
(1946-1991)
Soon after the Philippines was granted independence, the two countries entered into their
first military arrangement pursuant to the Treaty of General Relations - the 1947 MBA.41 The
Senate concurred on the premise of "mutuality of security interest,"42 which provided for the
presence and operation of 23 U.S. military bases in the Philippines for 99 years or until the
year 2046.43 The treaty also obliged the Philippines to negotiate with the U.S. to allow the
latter to expand the existing bases or to acquire new ones as military necessity might
require.44
A number of significant amendments to the 1947 MBA were made.45 With respect to its
duration, the parties entered into the Ramos-Rusk Agreement of 1966, which reduced the
term of the treaty from 99 years to a total of 44 years or until 1991. 46 Concerning the number
of U.S. military bases in the country, the Bohlen-Serrano Memorandum of Agreement
provided for the return to the Philippines of 17 U.S. military bases covering a total area of
117,075 hectares.47 Twelve years later, the U.S. returned Sangley Point in Cavite City
through an exchange of notes.48 Then, through the Romulo-Murphy Exchange of Notes of
1979, the parties agreed to the recognition of Philippine sovereignty over Clark and Subic
Bases and the reduction of the areas that could be used by the U.S. military.49 The
agreement also provided for the mandatory review of the treaty every five years.50 In 1983,
the parties revised the 1947 MBA through the Romualdez-Armacost Agreement.51 The
revision pertained to the operational use of the military bases by the U.S. government within
the context of Philippine sovereignty,52 including the need for prior consultation with the
Philippine government on the former's use of the bases for military combat operations or the
establishment of long-range missiles.53
Pursuant to the legislative authorization granted under Republic Act No. 9,54 the President
also entered into the 1947 Military Assistance Agreement55 with the U.S. This executive
agreement established the conditions under which U.S. military assistance would be granted
to the Philippines,56 particularly the provision of military arms, ammunitions, supplies,
equipment, vessels, services, and training for the latter's defense forces. 57 An exchange of
notes in 1953 made it clear that the agreement would remain in force until terminated by any
of the parties.58
To further strengthen their defense and security relationship, 59 the Philippines and the U.S.
next entered into the MDT in 1951. Concurred in by both the Philippine60 and the U.S.61
Senates, the treaty has two main features: first, it allowed for mutual assistance in
maintaining and developing their individual and collective capacities to resist an armed
attack;62 and second, it provided for their mutual self-defense in the event of an armed attack
against the territory of either party.63 The treaty was premised on their recognition that an
armed attack on either of them would equally be a threat to the security of the other.
Current legal regime on the
presence of U.S. armed forces
in the country
In view of the impending expiration of the 1947 MBA in 1991, the Philippines and the U.S.
negotiated for a possible renewal of their defense and security relationship. 65 Termed as the
Treaty of Friendship, Cooperation and Security, the countries sought to recast their military
ties by providing a new framework for their defense cooperation and the use of Philippine
installations.66 One of the proposed provisions included an arrangement in which U.S. forces
would be granted the use of certain installations within the Philippine naval base in Subic.67
On 16 September 1991, the Senate rejected the proposed treaty. 68
The consequent expiration of the 1947 MBA and the resulting paucity of any formal
agreement dealing with the treatment of U.S. personnel in the Philippines led to the
suspension in 1995 of large-scale joint military exercises.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. 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. Already
extended twice, the agreement will last until 2017.
D. The Enhanced Defense
Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct activities within
certain "Agreed Locations" in the country. It was not transmitted to the Senate on the
executive's understanding that to do so was no longer necessary. 85 Accordingly, in June
2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic
notes confirming the completion of all necessary internal requirements for the agreement to
enter into force in the two countries.86
According to the Philippine government, the conclusion of EDCA was the result of intensive
and comprehensive negotiations in the course of almost two years.87 After eight rounds of
negotiations, the Secretary of National Defense and the U.S. Ambassador to the Philippines
signed the agreement on 28 April 2014.88 President Benigno S. Aquino III ratified EDCA on 6
June 2014.89 The OSG clarified during the oral arguments90 that the Philippine and the U.S.
governments had yet to agree formally on the specific sites of the Agreed Locations
mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the constitutionality of
EDCA. They primarily argue that it should have been in the form of a treaty concurred in by
the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were concluded and the parties
ordered to file their respective memoranda, the Senators adopted Senate Resolution No.
(SR) 105.91 The resolution expresses the "strong sense"92 of the Senators that for EDCA to
become valid and effective, it must first be transmitted to the Senate for deliberation and
concurrence.
III. Issues
Petitioners mainly seek a declaration that the Executive Department committed grave abuse
of discretion in entering into EDCA in the form of an executive agreement. For this reason, we
cull the issues before us:chanRoblesvirtualLawlibrary
Whether the essential requisites for judicial review are present
Whether the President may enter into an executive agreement on foreign military
bases, troops, or facilities
Whether the provisions under EDCA are consistent with the Constitution, as well as
with existing laws and treaties
IV. Discussion
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.
Distinguished from the general notion of judicial power, the power of judicial review specially
refers to both the authority and the duty of this Court to determine whether a branch or an
instrumentality of government has acted beyond the scope of the latter's constitutional
powers. As articulated in Section 1, Article VIII of the Constitution, the power of judicial review
involves the power to resolve cases in which the questions concern the constitutionality or
validity of any treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation.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:chanRoblesvirtualLawlibrary
The separation of powers is a fundamental principle in our system of government. It obtains
not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction, and is
supreme within its own sphere. But it does not follow from the fact that the three powers
are to be kept separate and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination in the workings of the
various departments of the government, x x x. And the judiciary in turn, with the Supreme
Court as the final arbiter, effectively checks the other departments in the exercise of its
power to determine the law, and hence to declare executive and legislative acts void if
violative of the Constitution.
xxxx
As any human production, our Constitution is of course lacking perfection and perfectibility,
but as much as it was within the power of our people, acting through their delegates to so
provide, that instrument which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function as a
harmonious whole, under a system of checks and balances, and subject to specific
limitations and restrictions provided in the said instrument. The Constitution sets forth
in no uncertain language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for then the distribution of
powers would be mere verbiage, the bill of rights mere expressions of sentiment, and
the principles of good government mere political apothegms. Certainly, the limitations
and restrictions embodied in our Constitution are real as they should be in any living
constitution, x x x. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of [the 1935] Constitution.
The Constitution is a definition of the powers of government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality
of the judiciary as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy"
which properly is the power of judicial review under the Constitution, x x x x.
(Emphases supplied)cralawlawlibrary
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. Albam101 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. Francisco104 redressed these "pillars"
under the following categories:chanRoblesvirtualLawlibrary
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)
cralawlawlibrary
These are the specific safeguards laid down by the Court when it exercises its power of
judicial review.105 Guided by these pillars, it may invoke the power only when the following
four stringent requirements are satisfied: (a) there is an actual case or controversy; (b)
petitioners possess locus standi; (c) the question of constitutionality is raised at the earliest
opportunity; and (d) the issue of constitutionality is the lis mota of the case.106 Of these four,
the first two conditions will be the focus of our discussion.
1. Petitioners have shown the
presence of an actual case
or controversy.
The OSG maintains107 that there is no actual case or controversy that exists, since the
Senators have not been deprived of the opportunity to invoke the privileges of the institution
they are representing. It contends that the nonparticipation of the Senators in the present
petitions only confirms that even they believe that EDCA is a binding executive agreement
that does not require their concurrence.
It must be emphasized that the Senate has already expressed its position through SR 105.108
Through the Resolution, the Senate has taken a position contrary to that of the OSG. As the
body tasked to participate in foreign affairs by ratifying treaties, its belief that EDCA infringes
upon its constitutional role indicates that an actual controversy - albeit brought to the Court by
non-Senators, exists.
Moreover, we cannot consider the sheer abstention of the Senators from the present
proceedings as basis for finding that there is no actual case or controversy before us. We
point out that the focus of this requirement is the ripeness for adjudication of the matter at
hand, as opposed to its being merely conjectural or anticipatory. 109 The case must involve a
definite and concrete issue involving real parties with conflicting legal rights and legal claims
admitting of specific relief through a decree conclusive in nature. 110 It should not equate with
a mere request for an opinion or advice on what the law would be upon an abstract,
hypothetical, or contingent state of facts.111 As explained in Angara v. Electoral
Commission:112chanroblesvirtuallawlibrary
[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)cralawlawlibrary
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.
While petitioners Saguisag et. al, do not have legal standing, they nonetheless raise
issues involving matters of transcendental importance.
The question of locus standi or legal standing focuses on the determination of whether those
assailing the governmental act have the right of appearance to bring the matter to the court
for adjudication. They must show that they have a personal and substantial interest in the
case, such 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 thatit 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, petitioners 122 aver that the
implementation of EDCA would result in the unlawful use of public funds. They emphasize
that Article X(l) 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 they will sustain a direct injury as a result of the enforcement of the
assailed act.126 Applying that principle to this case, they must establish that EDCA involves
the exercise by Congress of its taxing or spending powers.127
We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We emphasize
that a taxpayers' suit contemplates a situation in which there is already an appropriation or a
disbursement of public funds.128 A reading of Article X(l) of EDCA would show that there has
been neither an appropriation nor an authorization of disbursement of funds. The cited
provision reads:chanRoblesvirtualLawlibrary
All obligations under this Agreement are subject to the availability of appropriated funds
authorized for these purposes. (Emphases supplied)cralawlawlibrary
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:134chanroblesvirtuallawlibrary
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)cralawlawlibrary
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 concurrence in a treaty
entered into by the Executive Department, only then incumbent Senator Pimentel was
allowed to assert that authority of the Senate of which he was a member.
Therefore, none of the initial petitioners in the present controversy has the standing to
maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act of the Executive for
the following reasons.
In any case, petitioners raise issues
involving matters of transcendental
importance.
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.
Whether the President may enter into an executive agreement on foreign military
bases, troops, or facilities
Whether the provisions under EDCA are consistent with the Constitution, as well as
with existing laws and treaties
Issues B and C shall be discussed together infra.
1. The role of the President as the
executor of the law includes the
duty to defend the State, for
which purpose he may use that
power in the conduct of foreign
relations
Historically, the Philippines has mirrored the division of powers in the U.S. government. When
the Philippine government was still an agency of the Congress of the U.S., it was as an agent
entrusted with powers categorized as executive, legislative, and judicial, and divided among
these three great branches.143 By this division, the law implied that the divided powers cannot
be exercised except by the department given the power.144
This divide continued throughout the different versions of the Philippine Constitution and
specifically vested the supreme executive power in the Governor-General of the
Philippines,145 a position inherited by the President of the Philippines when the country
attained independence. One of the principal functions of the supreme executive is the
responsibility for the faithful execution of the laws as embodied by the oath of office.146 The
oath of the President prescribed by the 1987 Constitution reads
thus:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
This Court has interpreted the faithful execution clause as an obligation imposed on the
President, and not a separate grant of power.148 Section 17, 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.cralawlawlibrary
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:151chanroblesvirtuallawlibrary
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)cralawlawlibrary
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,161chanroblesvirtuallawlibrary
[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.cralawlawlibrary
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:163chanroblesvirtuallawlibrary
The executive should be clothed with sufficient power to administer efficiently the affairs of
state. He should have complete control of the instrumentalities through whom his
responsibility is discharged. It is still true, as said by Hamilton, that "A feeble executive
implies a feeble execution of the government. A feeble execution is but another phrase for a
bad execution; and a government ill executed, whatever it may be in theory, must be in
practice a bad government." The mistakes of State governments need not be repeated here.
xxxx
Every other consideration to one side, this remains certain — The Congress of the United
States clearly intended that the Governor-General's power should be commensurate with his
responsibility. The Congress never intended that the Governor-General should be saddled
with the responsibility of administering the government and of executing the laws but shorn of
the power to do so. The interests of the Philippines will be best served by strict adherence to
the basic principles of constitutional government.cralawlawlibrary
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:chanRoblesvirtualLawlibrary
To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements.
However, the question whether the Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the political branches. In
this case, the Executive Department has already decided that it is to the best interest of the
country to waive all claims of its nationals for reparations against Japan in the Treaty of
Peace of 1951. The wisdom of such decision is not for the courts to question. Neither could
petitioners herein assail the said determination by the Executive Department via the instant
petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held that
"[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations, embarrassment —
perhaps serious embarrassment — is to be avoided and success for our aims achieved,
congressional legislation which is to be made effective through negotiation and inquiry within
the international field must often accord to the President a degree of discretion and
freedom from statutory restriction which would not be admissible where domestic
affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing
the conditions which prevail in foreign countries, and especially is this true in time of war. He
has his confidential sources of information. He has his agents in the form of diplomatic,
consular and other officials....cralawlawlibrary
cralawlawlibrary
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.
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:chanRoblesvirtualLawlibrary
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.cralawlawlibrary

This ruling has been incorporated in our jurisprudence through Bayan v. Executive It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the
Secretary and Pimentel v. Executive Secretary, its overreaching principle was, perhaps, basic requirements of a treaty under Section 21 of Article VII. This means that both provisions
best articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion: must be read as additional limitations to the President's overarching executive function in
matters of defense and foreign relations.
. . . 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 The President, however, may
that department of government which can act on the basis of the best available information enter into an executive agreement
and can decide with decisiveness. ... It is also the President who possesses the most on foreign military bases, troops,
comprehensive and the most confidential information about foreign countries for our or facilities, if (a) it is not the
diplomatic and consular officials regularly brief him on meaningful events all over the world. instrument that allows the presence
He has also unlimited access to ultra-sensitive military intelligence data. In fine, the of foreign military bases, troops, or
presidential role in foreign affairs is dominant and the President is traditionally facilities; or (b) it merely aims to
accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, implement an existing law or treaty.
nay, validity of his actions are adjudged under less stringent standards, lest their Again we refer to Section 25, Article XVIII of the Constitution:chanRoblesvirtualLawlibrary
judicial repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora of other SECTION 25. After the expiration in 1991 of the Agreement between the Republic of the
problems with equally undesirable consequences.169 (Emphases supplied) 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)cralawlawlibrary
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:chanRoblesvirtualLawlibrary
We look to the language of the document itself in our search for its meaning. We do not of
course stop there, but that is where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective sought to be attained. They are
to be given their ordinary meaning except where technical terms are employed in which
case the significance thus attached to them prevails. As the Constitution is not primarily a
lawyer's document, it being essential for the rule of law to obtain that it should ever be
present in the people's consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says according to the text of
the provision to be construed compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the people mean what they say.
Thus, these are the cases where the need for construction is reduced to a minimum. 178
(Emphases supplied)cralawlawlibrary
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:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
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:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
Moreover, the Court indicated that the Constitution continues to govern the conduct of foreign
military troops in the Philippines,185 readily implying the legality of their initial entry into the
country.
The OSG emphasizes that EDCA can be in the form of an executive agreement, since it
merely involves "adjustments in detail" in the implementation of the MDT and the VFA.186 It
points out that there are existing treaties between the Philippines and the U.S. that have
already been concurred in by the Philippine Senate and have thereby met the requirements
of the Constitution under Section 25. Because of the status of these prior agreements,
respondent emphasizes that EDCA need not be transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application
of verba legis construction to the words of Article XVIII, Section 25.187 It claims that the
provision is "neither plain, nor that simple."188 To buttress its disagreement, the dissent states
that the provision refers to a historical incident, which is the expiration of the 1947 MBA. 189
Accordingly, this position requires questioning the circumstances that led to the historical
event, and the meaning of the terms under Article XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis is not inapplicable
just because a provision has a specific historical context. In fact, every provision of the
Constitution has a specific historical context. The purpose of constitutional and statutory
construction is to set tiers of interpretation to guide the Court as to how a particular provision
functions. Verba legis is of paramount consideration, but it is not the only consideration. As
this Court has often said:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
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.
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
President to enter into agreements with other states, including the prerogative to conclude
binding executive agreements that do not require further Senate concurrence. The existence
of this presidential power203 is so well-entrenched that Section 5(2)(a), Article VIII of the
Constitution, even provides for a check on its exercise. As expressed below, executive
agreements are among those official governmental acts that can be the subject of this Court's
power of judicial review:chanRoblesvirtualLawlibrary
(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:chanRoblesvirtualLawlibrary
(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)cralawlawlibrary
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:chanRoblesvirtualLawlibrary
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:chanRoblesvirtualLawlibrary
... 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)
cralawlawlibrary
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:chanRoblesvirtualLawlibrary
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)cralawlawlibrary

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:207chanroblesvirtuallawlibrary
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.cralawlawlibrary
MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say international agreements
which need concurrence by at least two-thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are executive agreements
essentially but which are proceeding from the authorization of Congress. If that is our
understanding, then I am willing to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not need
subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the definition of
"executive agreements" and that would make unnecessary any explicit proviso on the
matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I
heard that these executive agreements must rely on treaties. In other words, there must first
be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as executive agreements
being the implementation of treaties, details of which do not affect the sovereignty of the
State.
MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99
years be considered permanent? What would be the measure of permanency? I do not
conceive of a treaty that is going to be forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether this type of
agreement should be included in a provision of the Constitution requiring the concurrence of
Congress.
MR. GUINGONA: It depends on the concept of the executive agreement of which I am not
clear. If the executive agreement partakes of the nature of a treaty, then it should also
be included.
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power
of the Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words
"international agreements" would include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it,
therefore, that as far as the Committee is concerned, the term "international
agreements" does not include the term "executive agreements" as read by the
Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)cralawlawlibrary
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 modern, simplified forms that no
longer necessitate ratification.212 An international agreement may take different forms: treaty,
act, protocol, agreement, concordat, compromis d'arbitrage, convention, covenant,
declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum of
agreement, modus vivendi, or some other form.213 Consequently, under international law, the
distinction between a treaty and an international agreement or even an executive agreement
is irrelevant for purposes of determining international rights and obligations.
However, this principle does not mean that the domestic law distinguishing treaties,
international agreements, and executive agreements is relegated to a mere variation in form,
or that the constitutional requirement of Senate concurrence is demoted to an optional
constitutional directive. There remain two very important features that distinguish treaties
from executive agreements and translate them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or implied authorization
under the Constitution, statutes, or treaties. The absence of these precedents puts the validity
and effectivity of executive agreements under serious question for the main function of the
Executive is to enforce the Constitution and the laws enacted by the Legislature, not to defeat
or interfere in the performance of these rules.214 In turn, executive agreements cannot create
new international obligations that are not expressly allowed or reasonably implied in the law
they purport to implement.
Second, treaties are, by their very nature, considered superior to executive agreements.
Treaties are products of the acts of the Executive and the Senate215 unlike executive
agreements, which are solely executive actions.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:chanRoblesvirtualLawlibrary
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:chanRoblesvirtualLawlibrary
1. Treaties, international agreements, and executive agreements are all constitutional
manifestations of the conduct of foreign affairs with their distinct legal characteristics.
a. Treaties are formal contracts between the Philippines and other States-
parties, which are in the nature of international agreements, and also of
municipal laws in the sense of their binding nature. 226
b. International agreements are similar instruments, the provisions of which
may require the ratification of a designated number of parties thereto. These
agreements involving political issues or changes in national policy, as well as
those involving international agreements of a permanent character, usually
take the form of treaties. They may also include commercial agreements,
which are executive agreements essentially, but which proceed from
previous authorization by Congress, thus dispensing with the requirement of
concurrence by the Senate.227
c. Executive agreements are generally intended to implement a treaty already
enforced or to determine the details of the implementation thereof that do not
affect the sovereignty of the State.228
2. Treaties and international agreements that cannot be mere executive agreements
must, by constitutional decree, be concurred in by at least two-thirds of the Senate.
3. However, an agreement - the subject of which is the entry of foreign military troops,
bases, or facilities - is particularly restricted. The requirements are that it be in the
form of a treaty concurred in by the Senate; that when Congress so requires, it be
ratified by a majority of the votes cast by the people in a national referendum held for
that purpose; and that it be recognized as a treaty by the other contracting State.
4. Thus, executive agreements can continue to exist as a species of international
agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her
constitutional authority and discretion when she chose to enter into the RP-U.S. Non-
Surrender Agreement in the form of an executive agreement, instead of a treaty, and in
ratifying the agreement without Senate concurrence. The Court en banc discussed this
intrinsic presidential prerogative as follows:chanRoblesvirtualLawlibrary
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 x x x may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and settlement of claims.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on
the propriety of entering, on a given subject, into a treaty or an executive agreement as
an instrument of international relations. The primary consideration in the choice of the
form of agreement is the parties' intent and desire to craft an international agreement in
the form they so wish to further their respective interests. Verily, the matter of form
takes a back seat when it comes to effectiveness and binding effect of the enforcement of a
treaty or an executive agreement, as the parties in either international agreement each labor
under the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact that — save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution — when a treaty is required,
the Constitution does not classify any subject, like that involving political issues, to be
in the form of, and ratified as, a treaty. What the Constitution merely prescribes is that
treaties need the concurrence of the Senate by a vote defined therein to complete the
ratification process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in the external affairs of
the nation is, as Bayan would put it, "executive altogether." The right of the President to
enter into or ratify binding executive agreements has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N 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. (Emphases supplied)cralawlawlibrary
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.
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:chanRoblesvirtualLawlibrary
1. Section 25, Article XVIII of the Constitution, contains stringent requirements that must
be fulfilled by the international agreement allowing the presence of foreign military
bases, troops, or facilities in the Philippines: (a) the agreement must be in the form of
a treaty, and (b) it must be duly concurred in by the Senate.
2. If the agreement is not covered by the above situation, then the President may
choose the form of the agreement (i.e., either an executive agreement or a treaty),
provided that the agreement dealing with foreign military bases, troops, or facilities is
not the principal agreement that first allows their entry or presence in the Philippines.
 3. The executive agreement must not go beyond the parameters, limitations, and
standards set by the law and/or treaty that the former purports to implement; and
must not unduly expand the international obligation expressly mentioned or
necessarily implied in the law or treaty.
4. The executive agreement must be consistent with the Constitution, as well as with
existing laws and treaties.
In light of the President's choice to enter into EDCA in the form of an executive agreement,
respondents carry the burden of proving that it is a mere implementation of existing laws and
treaties concurred in by the Senate. EDCA must thus be carefully dissected to ascertain if it
remains within the legal parameters of a valid executive agreement.
EDCA is consistent with
the content, purpose, and
framework of the MDT
and the VFAThe starting point of our analysis is the rule that "an executive agreement x x 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,"235i.e., the MDT
and the VFA. The Court proceeded to examine the extent of the term "activities" as
contemplated in Articles I236 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(10) 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
activities only, whereas the entry and activities of U.S. forces into Agreed Locations were
borne of military necessity or had a martial character, and were therefore not contemplated
by the VFA.246
This Court's jurisprudence however established in no uncertain terms that combat-related
activities, as opposed to actual combat, were allowed under the MDT and VFA,
viz:chanRoblesvirtualLawlibrary
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.247cralawlawlibrary
Hence, even if EDCA was borne of military necessity, it cannot be said to have strayed from
the intent of the VFA since EDCA's combat-related components are allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually are. Both the
VFA and EDCA deal with the presence of U.S. forces within the Philippines, but make no
mention of being platforms for activity beyond Philippine territory. While it may be that, as
applied, military operations under either the VFA or EDCA would be carried out in the future,
the scope of judicial review does not cover potential breaches of discretion but only actual
occurrences or blatantly illegal provisions. Hence, we cannot invalidate EDCA on the basis of
the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept not contemplated in
the VFA or the MDT: Agreed Locations, Contractors, Pre-positioning, and Operational
Control.248
As previously mentioned, these points shall be addressed fully and individually in the latter
analysis of EDCA's provisions. However, it must already be clarified that the terms and
details used by an implementing agreement need not be found in the mother treaty. They
must be sourced from the authority derived from the treaty, but are not necessarily expressed
word-for-word in the mother treaty. This concern shall be further elucidated in this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA does not have
provisions that may be construed as a restriction on or modification of obligations found in
existing statues, including the jurisdiction of courts, local autonomy, and taxation. Implied in
this argument is that EDCA contains such restrictions or modifications.249
This last argument cannot be accepted in view of the clear provisions of EDCA. Both the VFA
and EDCA ensure Philippine jurisdiction in all instances contemplated by both agreements,
with the exception of those outlined by the VFA in Articles III-VI. In the VFA, taxes are clearly
waived whereas in EDCA, taxes are assumed by the government as will be discussed later
on. This fact does not, therefore, produce a diminution of jurisdiction on the part of the
Philippines, but rather a recognition of sovereignty and the rights that attend it, some of which
may be waived as in the cases under Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be compared with those of the
MDT and the VFA, which are the two treaties from which EDCA allegedly draws its validity.
"Authorized presence" under the
VFA versus "authorized activities"
under EDCA: (1) U.S. personnel
and (2) U.S. contractors
The OSG argues250 that EDCA merely details existing policies under the MDT and the VFA. It
explains that EDCA articulates the principle of defensive preparation embodied in Article II of
the MDT; and seeks to enhance the defensive, strategic, and technological capabilities of
both parties pursuant to the objective of the treaty to strengthen those capabilities to prevent
or resist a possible armed attack. Respondent also points out that EDCA simply implements
Article I of the VFA, which already allows the entry of U.S. troops and personnel into the
country. Respondent stresses this Court's recognition in Lim v. Executive Secretary that U.S.
troops and personnel are authorized to conduct activities that promote the goal of maintaining
and developing their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT.
According to them, the treaty does not specifically authorize the entry of U.S. troops in the
country in order to maintain and develop the individual and collective capacities of both the
Philippines and the U.S. to resist an armed attack. They emphasize that the treaty was
concluded at a time when there was as yet no specific constitutional prohibition on the
presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the VFA. They assert
that the agreement covers only short-term or temporary visits of U.S. troops "from time to
time" for the specific purpose of combined military exercises with their Filipino counterparts.
They stress that, in contrast, U.S. troops are allowed under EDCA to perform activities
beyond combined military exercises, such as those enumerated in Articles 111(1) and IV(4)
thereof. Furthermore, there is some degree of permanence in the presence of U.S. troops in
the country, since the effectivity of EDCA is continuous until terminated. They proceed to
argue that while troops have a "rotational" presence, this scheme in fact fosters their
permanent presence.
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:chanRoblesvirtualLawlibrary
"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)cralawlawlibrary
A thorough evaluation of how EDCA is phrased clarifies that the agreement does not
deal with the entry into the country of U.S. personnel and contractors per se. While
Articles 1(1 )(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:chanRoblesvirtualLawlibrary
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
cralawlawlibrary
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:chanRoblesvirtualLawlibrary
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; x x x x.
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)cralawlawlibrary
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.
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 11(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 "disposed] x x x outside of the civilian personnel temporarily in the Philippines in connection with activities approved by
Philippines." the Philippine Government. Within this definition: x x x

Authorized activities of U.S. Article II - Respect for Law

military and civilian personnel
within Philippine territory are It is the duty of United States personnel to respect the laws of the Republic of the
in furtherance of the MDT and the VFA Philippines and to abstain from any activity inconsistent with the spirit of this
We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain agreement, and, in particular, from any political activity in the Philippines. The Government
to the activities in which U.S. military and civilian personnel may of the United States shall take all measures within its authority to ensure that this is done.
engage:chanRoblesvirtualLawlibrary
Article VII - Importation and Exportation
MUTUAL DEFENSE TREATY
1. United States Government equipment, materials, supplies, and other property
Article II 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
In order more effectively to achieve the objective of this Treaty, the Parties separately and Philippine duties, taxes and other similar charges. Title to such property shall remain with the
jointly by self-help and mutual aid will maintain and develop their individual and United States, which may remove such property from the Philippines at any time, free from
collective capacity to resist armed attack. export duties, taxes, and other similar charges, xxx.

Article III Article VIII - Movement of Vessels and Aircraft

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
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)cralawlawlibrary
Manifest in these provisions is the abundance of references to the creation of further
"implementing arrangements" including the identification of "activities [to be] approved by the
Philippine Government." To determine the parameters of these implementing arrangements
and activities, we referred to the content, purpose, and framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both countries shall engage
in joint activities, so that they can maintain and develop their defense capabilities. The
wording itself evidently invites a reasonable construction that the joint activities shall involve
joint military trainings, maneuvers, and exercises. Both the interpretation269 and the
subsequent practice270 of the parties show that the MDT independently allows joint military
exercises in the country, Lim v. Executive Secretary271 and Nicolas v. Romulo272 recognized
that Balikatan exercises, which are activities that seek to enhance and develop the strategic
and technological capabilities of the parties to resist an armed attack, "fall squarely under the
provisions of the RP-US MDT."273 In Lim, the Court especially noted that the Philippines and
the U.S. continued to conduct joint military exercises even after the expiration of the MBA and
even before the conclusion of the VFA.274 These activities presumably related to the Status of Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
Forces Agreement, in which the parties agreed on the status to be accorded to U.S. military logical to assume that "Balikatan 02-1," a "mutual anti-terrorism advising, assisting
and civilian personnel while conducting activities in the Philippines in relation to the MDT. 275 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
Further, it can be logically inferred from Article V of the MDT that these joint activities may be the VFA support the conclusion that combat-related activities — as opposed to combat itself
conducted on Philippine or on U.S. soil. The article expressly provides that the term armed — such as the one subject of the instant petition, are indeed authorized. (Emphases
attack includes "an armed attack on the metropolitan territory of either of the Parties, or on Supplied)cralawlawlibrary
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
The joint report of the Senate committees on foreign relations and on national defense and
capabilities, an assessment or training will need to be performed, separately and jointly by
security further explains the wide range and variety of activities contemplated in the VFA, and
self-help and mutual aid, in the territories of the contracting parties. It is reasonable to
how these activities shall be identified:277chanroblesvirtuallawlibrary
conclude that the assessment of defense capabilities would entail understanding the terrain,
wind flow patterns, and other environmental factors unique to the Philippines.
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
It would also be reasonable to conclude that a simulation of how to respond to attacks in
ability to acquire new techniques of patrol and surveillance to protect the country's
vulnerable areas would be part of the training of the parties to maintain and develop their
maritime resources; sea-search and rescue operations to assist ships in distress; and
capacity to resist an actual armed attack and to test and validate the defense plan of the
disaster-relief operations to aid the civilian victims of natural calamities, such as
Philippines. It is likewise reasonable to imagine that part of the training would involve an
earthquakes, typhoons and tidal waves.
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
xxxx
armed attack might be directed at the Philippine territory.
Joint activities under the VFA will include combat maneuvers; training in aircraft maintenance
The provisions of the MDT must then be read in conjunction with those of the VFA.
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
Article I of the VFA indicates that the presence of U.S. military and civilian personnel in the
headed jointly by the Chief of Staff of the AFP and the Commander in Chief of the U.S.
Philippines is "in connection with activities approved by the Philippine Government." While
Pacific Command—that the VFA exercises are planned. Final approval of any activity
the treaty does not expressly enumerate or detail the nature of activities of U.S. troops in the
involving U.S. forces is, however, invariably given by the Philippine Government.
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
xxxx
regional security in the Pacific area and the promotion of common security interests.
Siazon clarified that it is not the VFA by itself that determines what activities will be
The Court has already settled in Lim v. Executive Secretary that the phrase "activities
conducted between the armed forces of the U.S. and the Philippines. The VFA regulates
approved by the Philippine Government" under Article I of the VFA was intended to be
and provides the legal framework for the presence, conduct and legal status of U.S.
ambiguous in order to afford the parties flexibility to adjust the details of the purpose of the
personnel while they are in the country for visits, joint exercises and other related activities.
visit of U.S. personnel.276 In ruling that the Terms of Reference for the Balikatan Exercises in
(Emphases Supplied)cralawlawlibrary
2002 fell within the context of the treaty, this Court explained:chanRoblesvirtualLawlibrary

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.
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 in further agreements. EDCA is one such agreement.
EDCA seeks to be an instrument that enumerates the Philippine-approved activities of U.S.
personnel referred to in the VFA. 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:chanRoblesvirtualLawlibrary
 1. Security cooperation exercises; joint and combined training activities;
humanitarian assistance and disaster relief activities; and such other
activities as may be agreed upon by the Parties279
2. Training; transit; support and related activities; refueling of aircraft; bunkering
of vessels; temporary maintenance of vehicles, vessels, and aircraft;
temporary accommodation of personnel; communications; prepositioning of
equipment, supplies, and materiel; deployment of forces and materiel; and
such other activities as the Parties may agree280
3. Exercise of operational control over the Agreed Locations for construction
activities and other types of activity, including alterations and improvements
thereof281
4. Exercise of all rights and authorities within the Agreed Locations that are
necessary for their operational control or defense, including the adoption of
appropriate 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
cralawlawlibrary
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:286chanroblesvirtuallawlibrary
I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be established.
Temporary structures such as those for troop billeting, classroom
instruction and messing may be set up for use by RP and US Forces
during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-
Directors under the authority of the Chief of Staff, AFP. In no instance will US
Forces operate independently during field training exercises (FTX). AFP and
US Unit Commanders will retain command over their respective forces
under the overall authority of the Exercise Co-Directors. RP and US
participants shall comply with operational instructions of the AFP during the
FTX.
The exercise shall be conducted and completed within a period of not more
than six months, with the projected participation of 660 US personnel and
3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-
Directors to wind up and terminate the Exercise and other activities within the
six month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and
training Exercise relative to Philippine efforts against the ASG, and will be
conducted on the Island of Basilan. Further advising, assisting and training
exercises shall be conducted in Malagutay and the Zamboanga area.
Related activities in Cebu will be for support of the Exercise.
x x x x.
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)
cralawlawlibrary
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 JEDCA allows an unlimited period for U.S. forces to stay in the
Philippines.288
However, the provisions of EDCA directly contradict this argument by limiting itself to 10
years of effectivity. Although this term is automatically renewed, the process for terminating
the agreement is unilateral and the right to do so automatically accrues at the end of the 10
year period. Clearly, this method does not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been by chance that
the VFA does not include a maximum time limit with respect to the presence of U.S.
personnel in the country. We construe this lack of specificity as a deliberate effort on the part
of the Philippine and the U.S. governments to leave out this aspect and reserve it for the
"adjustment in detail" stage of the implementation of the treaty. We interpret the subsequent,
unconditional concurrence of the Senate in the entire text of the VFA as an implicit grant to
the President of a margin of appreciation in determining the duration of the "temporary"
presence of U.S. personnel in the country.
Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more
permanent" in nature.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:chanRoblesvirtualLawlibrary
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.290cralawlawlibrary
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:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
Likewise, Article 36(2) of the US-Poland Status of Forces Agreement
reads:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
Section VIII of U.S.-Denmark Mutual Support Agreement similarly
provides:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
On the other hand, Article XXI(3) of the U.S.-Australia Force Posture Agreement provides a
longer initial term:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
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.
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.
Authorized activities performed by U.S. 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:chanRoblesvirtualLawlibrary
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.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel
in the waters off Manila Bay.304 The Senate Committee on Foreign Relations and the Senate
Committee on Environment and Natural Resources chairperson claimed environmental and
procedural violations by the contractor.305 The U.S. Navy investigated the contractor and
promised stricter guidelines to be imposed upon its contractors.306 The statement attributed to
Commander Ron Steiner of the public affairs office of the U.S. Navy's 7th Fleet - that U.S.
Navy contractors are bound by Philippine laws - is of particular relevance. The statement
acknowledges not just the presence of the contractors, but also the U.S. position that these
contractors are bound by the local laws of their host state. This stance was echoed by other
U.S. Navy representatives.307
This incident simply shows that the Senate was well aware of the presence of U.S.
contractors for the purpose of fulfilling the terms of the VFA. That they are bound by
Philippine law is clear to all, even to the U.S. 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
As applied to EDCA, even when U.S. contractors are granted access to the Agreed follows:chanRoblesvirtualLawlibrary
Locations, all their activities must be consistent with Philippine laws and regulations and
pursuant to the MDT and the VFA. 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
While we recognize the concerns of petitioners, they do not give the Court enough the United States, once no longer required by United States forces for activities under this
justification to strike down EDCA. In Lim v. Executive Secretary, we have already explained Agreement. The Parties or the Designated Authorities shall consult regarding the terms of
that we cannot take judicial notice of claims aired in news reports, "not because of any issue return of any Agreed Locations, including possible compensation for improvements or
as to their truth, accuracy, or impartiality, but for the simple reason that facts must be construction.cralawlawlibrary
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
The context of use is "required by United States forces for activities under this Agreement."
countries would take place in the Philippines with certainty. As can be seen from the above
Therefore, the return of an Agreed Location would be within the parameters of an activity that
discussion, making sure that U.S. contractors comply with Philippine laws is a function of law
the Mutual Defense Board (MDB) and the Security Engagement Board (SEB) would
enforcement. EDCA does not stand in the way of law enforcement.
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
Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the coverage
Commander, U.S. PACOM with representatives from the Philippines' Department of National
of the VFA. As visiting aliens, their entry, presence, and activities are subject to all laws and
Defense and Department of Foreign Affairs sitting as members."313 The terms shall be
treaties applicable within the Philippine territory. They may be refused entry or expelled from
negotiated by both the Philippines and the U.S., or through their Designated Authorities. This
the country if they engage in illegal or undesirable activities. There is nothing that prevents
provision, seen as a whole, contradicts petitioners' interpretation of the return as a "badge of
them from being detained in the country or being subject to the jurisdiction of our courts. Our
exclusivity." In fact, it shows the cooperation and partnership aspect of EDCA in full bloom.
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
Second, the term "unimpeded access" must likewise be viewed from a contextual
entry and activities, their presence in the country is subject to unqualified Philippine
perspective. Article IV(4) states that U.S. forces and U.S. contractors shall have "unimpeded
jurisdiction.
access to Agreed Locations for all matters relating to the prepositioning and storage of
defense equipment, supplies, and materiel, including delivery, management, inspection, use,
EDCA does not allow the presence of U.S.-owned or -controlled military facilities and
maintenance, and removal of such equipment, supplies and materiel."
bases in the Philippines
At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the authority to
Petitioners Saguisag et al claim that EDCA permits the establishment of U.S. military bases
bring in these equipment, supplies, and materiel through the MDB and SEB security
through the "euphemistically" termed "Agreed Locations."312 Alluding to the definition of this
mechanism. These items are owned by the U.S.,314 are exclusively for the use of the U.S.315
term in Article 11(4) of EDCA, they point out that these locations are actually military bases,
and, after going through the joint consent mechanisms of the MDB and the SEB, are within
as the definition refers to facilities and areas to which U.S. military forces have access for a
the control of the U.S.316 More importantly, before these items are considered prepositioned,
variety of purposes. Petitioners claim that there are several badges of exclusivity in the use of
they must have gone through the process of prior authorization by the MDB and the SEB and
the Agreed Locations by U.S. forces. First, Article V(2) of EDCA alludes to a "return" of these
given proper notification to the AFP.317
areas once they are no longer needed by U.S. forces, indicating that there would be some
transfer of use. Second, Article IV(4) of EDCA talks about American forces' unimpeded
Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to the
access to the Agreed Locations for all matters relating to the prepositioning and storage of
ownership, use, and control of the U.S. over its own equipment, supplies, and materiel and
U.S. military equipment, supplies, and materiel. Third, Article VII of EDCA authorizes U.S.
must have first been allowed by the joint mechanisms in play between the two states since
forces to use public utilities and to operate their own telecommunications system.
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
Preliminary point on badges of exclusivity
of the Philippine Civil Code.318
As a preliminary observation, petitioners have cherry-picked provisions of EDCA by
presenting so-called "badges of exclusivity," despite the presence of contrary provisions
As for the view that EDCA authorizes U.S. forces to use public utilities and to operate their
within the text of the agreement itself.
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 First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over Philippine
(a) allow similar activities within the area; (b) provide for the same "species of ownership" territory occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any
over facilities; and (c) grant operational control over the entire area. Finally, they argue320 that such right over any part of the Philippines in which its forces or equipment may be found.
EDCA is in fact an implementation of the new defense policy of the U.S. According to them, Below is a comparative table between the old treaty and EDCA:chanRoblesvirtualLawlibrary
this policy was not what was originally intended either by the MDT or by the VFA.
1947 MBA/ 1946 Treaty of General
On these points, the Court is not persuaded. EDCA
Relations
The similar activities cited by petitioners321 simply show that under the MBA, the U.S. had the 1947 MBA, Art. 1(1): EDCA, preamble:
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 Affirming that the Parties share an
specifically for construction activities. They do not allow the overarching power to operate, The Government of the Republic of the understanding for the United States not to
maintain, utilize, occupy, garrison, and control a base with full discretion. EDCA in fact limits Philippines (hereinafter referred to as the establish a permanent military presence
the rights of the U.S. in respect of every activity, including construction, by giving the MDB Philippines) grants to the Government of the or base in the territory of the Philippines;
and the SEB the power to determine the details of all activities such as, but not limited to, United States of America (hereinafter
operation, maintenance, utility, occupancy, garrisoning, and control. 322 referred to as the United States) the right to xxxx
retain the use of the bases in the
The "species of ownership" on the other hand, is distinguished by the nature of the property. Philippines listed in Annex A attached Recognizing that all United States access to
For immovable property constructed or developed by the U.S., EDCA expresses that hereto. and use of facilities and areas will be at the
ownership will automatically be vested to the Philippines. 323 On the other hand, for movable invitation of the Philippines and with full
properties brought into the Philippines by the U.S., EDCA provides that ownership is retained 1947 MBA, Art. XVII(2): respect for the Philippine Constitution and
by the latter. In contrast, the MBA dictates that the U.S. retains ownership over immovable Philippine laws;
and movable properties. All buildings and structures which are
erected by the United States in the bases xxxx
To our mind, both EDCA and the MBA simply incorporate what is already the law of the land shall be the property of the United States
in the Philippines. The Civil Code's provisions on ownership, as applied, grant the owner of a and may be removed by it before the
movable property full rights over that property, even if located in another person's property. 324 EDCA, Art. 11(4):
expiration of this Agreement or the earlier
relinquishment of the base on which the
The parallelism, however, ends when the situation involves facilities that can be considered structures are situated. There shall be no "Agreed Locations" means facilities and
immovable. Under the MBA, the U.S. retains ownership if it paid for the facility. 325 Under obligation on the part of the Philippines or of areas that are provided by the Government
EDCA, an immovable is owned by the Philippines, even if built completely on the back of U.S. the United States to rebuild or repair any of the Philippines through the AFP and that
funding.326 This is consistent with the constitutional prohibition on foreign land ownership. 327 destruction or damage inflicted from any United States forces, United States
cause whatsoever on any of the said contractors, and others as mutually agreed,
Despite the apparent similarity, the ownership of property is but a part of a larger whole that buildings or structures owned or used by the shall have the right to access and use
must be considered before the constitutional restriction is violated. Thus, petitioners' points United States in the bases, x x x x. pursuant to this Agreement. Such Agreed
on operational control will be given more attention in the discussion below. The arguments on Locations may be listed in an annex to be
policy are, however, outside the scope of judicial review and will not be discussed appended to this Agreement, and may be
1946 Treaty of Gen. Relations. Art. I:
further described in implementing
Moreover, a direct comparison of the MBA and EDCA will result in several important arrangements.
distinctions that would allay suspicion that EDCA is but a disguised version of the MBA. The United States of America agrees to
withdraw and surrender, and does hereby
EDCA, Art. V:
There are substantial matters that the U.S. cannot do under EDCA, but which it was withdraw and surrender, all rights of
authorized to do under the 1947 MBA possession, supervision, jurisdiction,
control or sovereignty existing and 1. The Philippines shall retain ownership
The Philippine experience with U.S. military bases under the 1947 MBA is simply not possible
under EDCA for a number of important reasons. exercised by the United States of America in of and title to Agreed Locations.
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.
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 Relations
1947 MBA, Art. I(3):
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
xxxx
4. All buildings, non-relocatable
structures, and assemblies affixed to the
land in the Agreed Locations, including
ones altered or improved by United States
forces, remain the property of the
Philippines. Permanent buildings
constructed by United States forces become
the property of the Philippines, once
constructed, but shall be used by United
States forces until no longer required by
United States forces.
EDCA
EDCA, preamble:
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
such bases, necessary appurtenances to further described in implementing
such bases, and the rights incident thereto, arrangements.
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, xxx.
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 EDCA. Art. III(5):
provision.
The Philippine Designated Authority and its authorized
representative shall have access to the entire area of the Agreed
Locations. Such access shall be provided promptly consistent with
operational safety and security requirements in accordance with agreed
procedures developed by the Parties.
Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the
establishment, use, operation, defense, and control of military bases, including the limits of
territorial waters and air space adjacent to or in the vicinity of those bases. The only standard
used in determining the extent of its control was military necessity. On the other hand, there
is no such grant of power or authority under EDCA. It merely allows the U.S. to exercise
operational control over the construction of Philippine-owned structures and
facilities:chanRoblesvirtualLawlibrary
1947 MBA EDCA
1947 MBA. Art. 1(2): EDCA, Art. 111(4):
The Philippines agrees to permit the United The Philippines hereby grants to the United
States, upon notice to the Philippines, to use States, through bilateral security
such of those bases listed in Annex B as mechanisms, such as the MDB and SEB,
operational control of Agreed Locations
for construction activities and authority to
the United States determines to be undertake such activities on, and make
required by military necessity. alterations and improvements to, Agreed
Locations. United States forces shall Sixth, under the MBA, the U.S. was given the right, power, and authority to control and
consult on issues regarding such prohibit the movement and operation of all types of vehicles within the vicinity of the bases.
1947 MBA, Art. III(1)
construction, alterations, and The U.S. does not have any right, power, or authority to do so under EDCA.
improvements based on the Parties' shared
It is mutually agreed that the United States
shall have the rights, power and authority intent that the technical requirements and 1947 MBA EDCA
within the bases which are necessary for construction standards of any such projects 1947 MBA. Art. III(2)(c) No
the establishment, use, operation and undertaken by or on behalf of United States equivalent
defense thereof or appropriate for the forces should be consistent with the
Such rights, power and authority shall include, inter alia, the right, power and provision.
control thereof and all the rights, power and requirements and standards of both Parties. authority: x x x x to control (including the right to prohibit) in so far as may be
authority within the limits of territorial required for the efficient operation and safety of the bases, and within the limits
waters and air space adjacent to, or in the of military necessity, anchorages, moorings, landings, takeoffs,
vicinity of, the bases which are necessary movements and operation of ships and water-borne craft, aircraft and
to provide access to them, or appropriate other vehicles on water, in the air or on land comprising
for their control.

Seventh, under EDCA, the U.S. is merely given temporary access to land and facilities
Fifth, the U.S. under the bases agreement was given the authority to use Philippine territory (including roads, ports, and airfields). On the other hand, the old treaty gave the U.S. the right
for additional staging areas, bombing and gunnery ranges. No such right is given under to improve and deepen the harbors, channels, entrances, and anchorages; and to construct
EDCA, as seen below:chanRoblesvirtualLawlibrary or maintain necessary roads and bridges that would afford it access to its military bases.

1947 MBA EDCA 1947 MBA EDCA

1947 MBA, Art. VI: EDCA, Art. 111(1): 1947 MBA, Art. III(2)(b): EDCA, Art. 111(2):

The United States shall, subject to previous With consideration of the views of the Such rights, power and authority shall When requested, the Designated Authority of
agreement with the Philippines, have the Parties, the Philippines hereby authorizes include, inter alia, the right, power and the Philippines shall assist in facilitating
right to use land and coastal sea areas of and agrees that United States forces, United authority: x x x x to improve and deepen transit or temporary access by United
appropriate size and location for periodic States contractors, and vehicles, vessels, the harbors, channels, entrances and States forces to public land and facilities
maneuvers, for additional staging areas, and aircraft operated by or for United States anchorages, and to construct or maintain (including roads, ports, and airfields),
bombing and gunnery ranges, and for forces may conduct the following activities necessary roads and bridges affording including those owned or controlled by local
such intermediate airfields as may be with respect to Agreed Locations: training; access to the bases. governments, and to other land and facilities
required for safe and efficient air operations.transit; support and related activities; (including roads, ports, and airfields).
Operations in such areas shall be carried on refueling of aircraft; bunkering of vessels;
with due regard and safeguards for the public temporary maintenance of vehicles, vessels,
safety. and aircraft; temporary accommodation of
Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all public
personnel; communications; prepositioning of
utilities, services and facilities, airfields, ports, harbors, roads, highways, railroads, bridges,
1947 MBA, Art. 1(2): equipment, supplies, and materiel; deploying
viaducts, canals, lakes, rivers, and streams in the Philippines in the same manner that
forces and materiel; and such other activities
Philippine military forces enjoyed that right. No such arrangement appears in EDCA. In fact, it
The Philippines agrees to permit the United as the Parties may agree. merely extends to U.S. forces temporary access to public land and facilities when
States, upon notice to the Philippines, to use requested:chanRoblesvirtualLawlibrary
such of those bases listed in Annex B as
the United States determines to be 1947 MBA EDCA
required by military necessity.
1947 MBA, Art. VII: EDCA, Art. III(2): 1947 MBA EDCA
1947 MBA, Art. XXII(1): No equivalent
It is mutually agreed that the United States When requested, the Designated Authority provision.
may employ and use for United States of the Philippines shall assist in facilitating Whenever it is necessary to acquire by condemnation or expropriation
military forces any and all public utilities, transit or temporary access by United proceedings real property belonging to any private persons,
other services and facilities, airfields, ports, States forces to public land and facilities associations or corporations located in bases named in Annex A and Annex
harbors, roads, highways, railroads, bridges, (including roads, ports, and airfields), B in order to carry out the purposes of this Agreement, the Philippines will
viaducts, canals, lakes, rivers and streams in including those owned or controlled by local institute and prosecute such condemnation or expropriation proceedings in
the Philippines under conditions no less governments, and to other land and facilities accordance with the laws of the Philippines. The United States agrees to
favorable than those that may be (including roads, ports, and airfields). reimburse the Philippines for all the reasonable expenses, damages and
applicable from time to time to the military costs thereby incurred, including the value of the property as determined by
forces of the Philippines. 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
Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, or ejected by reason of the condemnation or expropriation.
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 Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine
the Philippine-owned Agreed Locations. 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
1947 MBA EDCA under the VFA.
1947 MBA, Art. III(2)(e): EDCA. Art. III(4).
1947 MBA EDCA
Such rights, power and authority shall The Philippines hereby grants to the United 1947 MBA, Art. XI(1): EDCA, Art. II:
include, inter alia, the right, power and States, through bilateral security
authority: x x x x to construct, install, mechanisms, such as the MDB and SEB, It is mutually agreed that the United States 1. "United States personnel" means United
maintain, and employ on any base any ooperational control of Agreed Locations for shall have the right to bring into the States military and civilian personnel
type of facilities, weapons, substance, construction activities and authority to Philippines members of the United States temporarily in the territory of the Philippines
device, vessel or vehicle on or under the undertake such activities on, and make military forces and the United States in connection with activities approved by the
ground, in the air or on or under the water alterations and improvements to, Agreed nationals employed by or under a contract Philippines, as those terms are defined in
that may be requisite or appropriate, Locations. United States forces shall consult with the United States together with their the VFA.
including meteorological systems, aerial and on issues regarding such construction, families, and technical personnel of other
water navigation lights, radio and radar alterations, and improvements based on the nationalities (not being persons excluded by
apparatus and electronic devices, of any Parties' shared intent that the technical xxxx
the laws of the Philippines) in connection with
desired power, type of emission and requirements and construction standards of the construction, maintenance, or operation
frequency. any such projects undertaken by or on behalf 3. "United States contractors" means
of the bases. The United States shall make companies and firms, and their employees,
of United States forces should be consistent suitable arrangements so that such persons
with the requirements and standards of both under contract or subcontract to or on behalf
may be readily identified and their status
Parties. of the United States Department of Defense.
established when necessary by the Philippine United States contractors are not included
authorities. Such persons, other than as part of the definition of United States
members of the United States armed forces personnel in this Agreement, including
Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation in uniform, shall present their travel within the context of the VFA.
proceedings, real property belonging to any private person. The old military bases agreement documents to the appropriate Philippine
gave this right to the U.S. as seen below:chanRoblesvirtualLawlibrary authorities for visas, it being understood that
no objection will be made to their travel to
the Philippines as nonimmigrants.
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:chanRoblesvirtualLawlibrary
1947 MBA EDCA
1947 MBA, Art. XIII(1)(a): No
equivalent
The Philippines consents that the United States shall have the right to provision.
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(1): No
equivalent
provision.
It is mutually agreed that the United States shall have the right to establish
on bases, free of all licenses; fees; sales, excise or other taxes, or imposts;
Government agencies, including concessions, such as sales commissaries
and post exchanges; messes and social clubs, for the exclusive use of the
United States military forces and authorized civilian personnel and their
families. The merchandise or services sold or dispensed by such agencies shall
be free of all taxes, duties and inspection by the Philippine authorities.
Administrative measures shall be taken by the appropriate authorities of the
United States to prevent the resale of goods which are sold under the provisions
of this Article to persons not entitled to buy goods at such agencies and,
generally, to prevent abuse of the privileges granted under this Article. There
shall be cooperation between such authorities and the Philippines to this end.
In sum, EDCA is a far cry from a basing agreement as was understood by the people at the
time that the 1987 Constitution was adopted.
Nevertheless, a comprehensive review of what the Constitution means by "foreign military
bases" and "facilities" is required before EDCA can be deemed to have passed judicial
scrutiny.
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:chanRoblesvirtualLawlibrary
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, Tarlac329cralawlawlibrary
The Bases Conversion and Development Act of 1992 described its coverage in its
Declaration of Policies:chanRoblesvirtualLawlibrary
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 1947 Military Bases Agreement between the Philippines and
the United States of America, as amended. 330cralawlawlibrary
The result of the debates and subsequent voting is Section 25, Article XVIII of the
Constitution, which specifically restricts, among others, foreign military facilities or bases. At
the time of its crafting of the Constitution, the 1986 Constitutional Commission had a clear
idea of what exactly it was restricting. While the term "facilities and bases" was left undefined,
its point of reference was clearly those areas covered by the 1947 MBA as amended.
Notably, nearly 30 years have passed since then, and the ever-evolving world of military
technology and geopolitics has surpassed the understanding of the Philippine people in 1986.
The last direct military action of the U.S. in the region was the use of Subic base as the
staging ground for Desert Shield and Desert Storm during the Gulf War.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.332cralawlawlibrary
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
cralawlawlibrary
Section 25 does not define what is meant by a "foreign military facility or base." While it
specifically alludes to U.S. military facilities and bases that existed during the framing of the
Constitution, the provision was clearly meant to apply to those bases existing at the time and
to any future facility or base. The basis for the restriction must first be deduced from the spirit
of the law, in order to set a standard for the application of its text, given the particular
historical events preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to glean, from their
collective wisdom, the intent of Section 25. Their speeches are rich with history and wisdom
and present a clear picture of what they considered in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption of the anti-bases provisions with
what purports to be an objective presentation of the historical background of the military
bases in the Philippines. Care appears, however, to have been taken to underscore the
inequity in their inception as well as their implementation, as to seriously reflect on the
supposed objectivity of the report. Pronouncements of military and civilian officials shortly
after World War II are quoted in support of the proposition on neutrality; regrettably, the
implication is that the same remains valid today, as if the world and international activity stood
still for the last 40 years.
We have been given inspired lectures on the effect of the presence of the military
bases on our sovereignty — whether in its legal or political sense is not clear — and
the theory that any country with foreign bases in its territory cannot claim to be fully
sovereign or completely independent. I was not aware that the concepts of sovereignty
and independence have now assumed the totality principle, such that a willing assumption of
some delimitations in the exercise of some aspects thereof would put that State in a lower
bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros and cons on the
advisability of having military bases within our shores. Most of us who, only about three
months ago, were just mulling the prospects of these varying contentions are now expected,
like armchair generals, to decide not only on the geopolitical aspects and contingent
implications of the military bases but also on their political, social, economic and cultural
impact on our national life. We are asked to answer a plethora of questions, such as: 1)
whether the bases are magnets of nuclear attack or are deterrents to such attack; 2) whether
an alliance or mutual defense treaty is a derogation of our national sovereignty; 3) whether
criticism of us by Russia, Vietnam and North Korea is outweighed by the support for us of the
ASEAN countries, the United States, South Korea, Taiwan, Australia and New Zealand; and
4) whether the social, moral and legal problems spawned by the military bases and their
operations can be compensated by the economic benefits outlined in papers which have
been furnished recently to all of us.335
xxxx
Of course, one side of persuasion has submitted categorical, unequivocal and forceful
assertions of their positions. They are entitled to the luxury of the absolutes. We are urged
now to adopt the proposed declaration as a "golden," "unique" and "last" opportunity
for Filipinos to assert their sovereign rights. Unfortunately, I have never been enchanted
by superlatives, much less for the applause of the moment or the ovation of the hour. Nor do I
look forward to any glorious summer after a winter of political discontent. Hence, if I may join
Commissioner Laurel, I also invoke a caveat not only against the tyranny of labels but also
the tyranny of slogans.336
xxxx
SPEECH OF COMMISSIONER SUAREZ337
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the resolution of the problem of the
removal of foreign bases from the Philippines have been adequately treated by previous
speakers. Let me, therefore, just recapitulate the arguments adduced in favor of a foreign
bases-free Philippines:chanRoblesvirtualLawlibrary
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 self- respect as a nation;
4. That these foreign military bases unnecessarily expose our country to devastating
nuclear attacks;
5. That these foreign military bases create social problems and are designed to perpetuate
the strangle-hold of United States interests in our national economy and development;
6. That the extraterritorial rights enjoyed by these foreign bases operate to deprive our
country of jurisdiction over civil and criminal offenses committed within our own national
territory and against Filipinos;
7. That the bases agreements are colonial impositions and dictations upon our helpless
country; and
8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null
and void ab initio, especially because they did not count the sovereign consent and will of the
Filipino people.338
xxxx
In the real sense, Madam President, if we in the Commission could accommodate the
provisions I have cited, what is our objection to include in our Constitution a matter as
priceless as the nationalist values we cherish? A matter of the gravest concern for the
safety and survival of this nation indeed deserves a place in our Constitution.
XXXX
xxx 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
xxx Hence, the remedy to prostitution does not seem to be primarily to remove the
bases because even if the bases are removed, the girls mired in poverty will look for their
clientele elsewhere. The remedy to the problem of prostitution lies primarily elsewhere — in
an alert and concerned citizenry, a healthy economy and a sound education in values. 343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of foreign military bases here is
that they impair portions of our sovereignty. While I agree that our country's sovereignty
should not be impaired, I also hold the view that there are times when it is necessary to do so
according to the imperatives of national interest. There are precedents to this effect. Thus,
during World War II, England leased its bases in the West Indies and in Bermuda for 99 years
to the United States for its use as naval and air bases. It was done in consideration of 50
overaged destroyers which the United States gave to England for its use in the Battle of the
Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United States for the latter's
use as a naval base in the Indian Ocean. About the same time, the United States obtained
bases in Spain, Egypt and Israel. In doing so, these countries, in effect, contributed to the
launching of a preventive defense posture against possible trouble in the Middle East and in
the Indian Ocean for their own protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations, the presence of
American troops in the country is a projection of America's security interest. Enrile said that
nonetheless, they also serve, although in an incidental and secondary way, the security
interest of the Republic of the Philippines and the region. Yes, of course, Mr. Enrile also
echoes the sentiments of most of us in this Commission, namely: It is ideal for us as an
independent and sovereign nation to ultimately abrogate the RP-US military treaty and,
at the right time, build our own air and naval might.347
xxxx
Allow me to say in summation that I am for the retention of American military bases in
the Philippines provided that such an extension from one period to another shall be
concluded upon concurrence of the parties, and such extension shall be based on
justice, the historical amity of the people of the Philippines and the United States and
their common defense interest.348
SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission started with this task of framing a
constitution, I read a statement of President Aquino to the effect that she is for the removal of
the U.S. military bases in this country but that the removal of the U.S. military bases should
not be done just to give way to other foreign bases. Today, there are two world superpowers,
both vying to control any and all countries which have importance to their strategy for world
domination. The Philippines is one such country.
Madam President, I submit that I am one of those ready to completely remove any
vestiges of the days of enslavement, but not prepared to erase them if to do so would
merely leave a vacuum to be occupied by a far worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our brethren in the Middle
East, in Indo-China, Central America, in South Africa — there has been escalation of war in
some of these areas because of foreign intervention which views these conflicts through the
narrow prism of the East-West conflict. The United States bases have been used as
springboards for intervention in some of these conflicts. We should not allow
ourselves to be party to the warlike mentality of these foreign interventionists. We must
always be on the side of peace — this means that we should not always rely on military
solution.
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 ba 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 dlbdib ng sambayanang Pilipinong patuloy na nakabaon.
Para sa sambayanang magbubukid, ang ibig sabihin ng U.S. military bases ay batong
pabigat na patuloy na pinapasan ng sambayanang Pilipino. Para sa sambayanang
magbubukid, ang pananatili ng U.S. military bases ay isang nagdudumilat na katotohanan
ng patuloy na paggahasa ng imperyalistang Estados Unidos sa ating Inang Bayan —
economically, politically and culturally. Para sa sambayanang magbubukid. ang U.S.
military bases ay kasingkahulugan ng nuclear weapon — ang kahulugan ay magneto ng
isang nuclear war. Para sa sambayanang magbubukid, ang kahulugan ng U.S. military
bases ay isang salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves from the instruments of
domination and subservience has clearly been defined these past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to declare my support for the committee's
position to enshrine in the Constitution a fundamental principle forbidding foreign military
bases, troops or facilities in any part of the Philippine territory as a clear and concrete
manifestation of our inherent right to national self-determination, independence and
sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes of genuine nationhood to the
social cost of allowing foreign countries to maintain military bases in our country. Previous
speakers have dwelt on this subject, either to highlight its importance in relation to the other
issues or to gloss over its significance and make 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:chanRoblesvirtualLawlibrary
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 PADILLA360
xxxx
Mr. Presiding Officer, in advocating the majority committee report, specifically Sections 3 and
4 on neutrality, nuclear and bases-free country, some views stress sovereignty of the
Republic and even invoke survival of the Filipino nation and people.361
REBUTTAL OF COMMISSIONER NOLLEDO362
xxxx
The anachronistic and ephemeral arguments against the provisions of the committee report
to dismantle the American bases after 1991 only show the urgent need to free our country
from the entangling alliance with any power bloc.363
xxxx
x x 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)cralawlawlibrary

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.
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 government.368 What U.S. personnel have a right to, pending mutual
agreement, is access to and use of these locations.369
The right of the owner of the property to allow access and use is consistent with the Civil
Code, since the owner may dispose of the property in whatever way deemed fit, subject to
the limits of the law. So long as the right of ownership itself is not transferred, then whatever
rights are transmitted by agreement does not completely divest the owner of the rights over
the property, but may only limit them in accordance with law.
Hence, even control over the property is something that an owner may transmit freely. This
act does not translate into the full transfer of ownership, but only of certain rights. In Roman
Catholic Apostolic Administrator of Davao, Inc. v. Land Registration Commission, we stated
that the constitutional proscription on property ownership is not violated despite the foreign
national's control over the property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and
access. Under its pertinent provisions, it is the Designated Authority of the Philippines that
shall, when requested, assist in facilitating transit or access to public land and facilities. 371
The activities carried out within these locations are subject to agreement as authorized by the
Philippine government.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:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
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 1986,1 spoke on the self-reliance policy of the armed forces. However, due to
very limited resources, the only thing we could do is manufacture small arms ammunition. We
cannot blame the armed forces. We have to blame the whole Republic of the Philippines for
failure to provide the necessary funds to make the Philippine Armed Forces self-reliant.
Indeed that is a beautiful dream. And I would like it that way. But as of this time, fighting an
insurgency case, a rebellion in our country — insurgency — and with very limited funds and
very limited number of men, it will be quite impossible for the Philippines to appropriate the
necessary funds therefor. However, if we say that the U.S. government is furnishing us
the military hardware, it is not control of our armed forces or of our government. It is in
compliance with the Mutual Defense Treaty. It is under the military assistance program
that it becomes the responsibility of the United States to furnish us the necessary hardware in
connection with the military bases agreement. Please be informed that there are three (3)
treaties connected with the military bases agreement; namely: the RP-US Military Bases
Agreement, the Mutual Defense Treaty and the Military Assistance Program.
My dear Commissioner, when we enter into a treaty and we are furnished the military
hardware pursuant to that treaty, it is not in control of our armed forces nor control of
our government. True indeed, we have military officers trained in the U.S. armed forces
school. This is part of our Military Assistance Program, but it does not mean that the minds of
our military officers are for the U.S. government, no. I am one of those who took four courses
in the United States schools, but I assure you, my mind is for the Filipino people. Also, while
we are sending military officers to train or to study in U.S. military schools, we are also
sending our officers to study in other military schools such as in Australia, England and in
Paris. So, it does not mean that when we send military officers to United States schools or to
other military schools, we will be under the control of that country. We also have foreign
officers in our schools, we in the Command and General Staff College in Fort Bonifacio and in
our National Defense College, also in Fort Bonifacio. 377 (Emphases supplied)cralawlawlibrary
This logic was accepted in Tañada v. Angara, in which the Court ruled that independence
does not mean the absence of foreign participation:chanRoblesvirtualLawlibrary
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)
cralawlawlibrary
The heart of the constitutional restriction on foreign military facilities and bases is therefore
the assertion of independence from the U.S. and other foreign powers, as independence is
exhibited by the degree of foreign control exerted over these areas. The essence of that
independence is self-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:chanRoblesvirtualLawlibrary
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.cralawlawlibrary
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.383cralawlawlibrary
At times, though, operational control can mean something slightly different. In JUSMAG
Philippines v. National Labor Relations Commission, the Memorandum of Agreement
between the AFP and JUSMAG Philippines defined the term as
follows:384chanroblesvirtuallawlibrary
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.
cralawlawlibrary
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-a-vis
effective command and control
cralawlawlibrary
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 "[tjhose 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.
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:398chanroblesvirtuallawlibrary
Command and control encompasses the exercise of authority, responsibility, and direction by
a commander over assigned and attached forces to accomplish the mission. Command at all
levels is the art of motivating and directing people and organizations into action to accomplish
missions. Control is inherent in command. To control is to manage and direct forces and
 functions consistent with a commander's command authority. Control of forces and functions
helps commanders and staffs compute requirements, allocate means, and integrate efforts.
Mission command is the preferred method of exercising C2. A complete discussion of tenets,
organization, and processes for effective C2 is provided in Section B, "Command and Control
of Joint Forces," of Chapter V "Joint Command and Control."cralawlawlibrary
Operational control is defined thus:399chanroblesvirtuallawlibrary
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.cralawlawlibrary
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
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
cralawlawlibrary
EDCA states in its Preamble the "understanding for the United States not to establish a
permanent military presence or base in the territory of the Philippines." Further on, it likewise
states the recognition that "all United States access to and use of facilities and areas will be
at the invitation of the Philippines and with full respect for the Philippine Constitution and
Philippine laws."
The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of
Philippine sovereignty and jurisdiction over the Agreed Locations.

Sovereignty is the possession of sovereign power,406 while jurisdiction is the conferment by

law of power and authority to apply the law.407 Article I of the 1987 Constitution
As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S.
states:chanRoblesvirtualLawlibrary
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
The national territory comprises the Philippine archipelago, with all the islands and waters
construction activity through consultation and mutual agreement on the requirements and
embraced therein, and all other territories over which the Philippines has sovereignty or
standards of the construction, alteration, or improvement.402
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)cralawlawlibrary
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.413chanroblesvirtuallawlibrary
iii. Third standard: must respect
national security and territorial
integrity
cralawlawlibrary
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.414cralawlawlibrary
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow,
for instance, the re-establishment of the Subic military base or the Clark Air Field as U.S.
military reservations. In this context, therefore, this Court has interpreted the restrictions on
foreign bases, troops, or facilities as three independent restrictions. In accord with this
interpretation, each restriction must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define what a military base is. 415
While the source is not authoritative, petitioners make the point that the Agreed Locations, by
granting access and use to U.S. forces and contractors, are U.S. bases under a different
name.416 More important, they claim that the Agreed Locations invite instances of attack on
the Philippines from enemies of the U.S. 417
We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of
politics and policy. At the very least, we can say that under international law, EDCA does not
provide a legal basis for a justified attack on the Philippines.
In the first place, international law disallows any attack on the Agreed Locations simply
because of the presence of U.S. personnel. Article 2(4) of the United Nations Charter states
that "All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations."418 Any unlawful attack on the
Philippines breaches the treaty, and triggers Article 51 of the same charter, which guarantees
the inherent right of individual or collective self-defence.
Moreover, even if the lawfulness of the attack were not in question, international humanitarian
law standards prevent participants in an armed conflict from targeting non-participants.
International humanitarian law, which is the branch of international law applicable to armed
conflict, expressly limits allowable military conduct exhibited by forces of a participant in an
armed conflict.419 Under this legal regime, participants to an armed conflict are held to
specific standards of conduct that require them to distinguish between combatants and non-
combatants,420 as embodied by the Geneva Conventions and their Additional Protocols. 421
Corollary to this point, Professor John Woodcliffe, professor of international law at the
University of Leicester, noted that there is no legal consensus for what constitutes a base, as
opposed to other terms such as "facilities" or "installation." 422 In strategic literature, "base" is
defined as an installation "over which the user State has a right to exclusive control in an
extraterritorial sense."423 Since this definition would exclude most foreign military installations,
a more important distinction must be made.
For Woodcliffe, a type of installation excluded from the definition of "base" is one that does
not fulfill a combat role. He cites an example of the use of the territory of a state for training
purposes, such as to obtain experience in local geography and climactic conditions or to carry
out joint exercises.424 Another example given is an advanced communications technology
installation for purposes of information gathering and communication.425 Unsurprisingly, he
deems these non-combat uses as borderline situations that would be excluded from the
functional understanding of military bases and installations.426
By virtue of this ambiguity, the laws of war dictate that the status ofa building or person is
presumed to be protected, unless proven otherwise.427 Moreover, the principle of distinction
requires combatants in an aimed conflict to distinguish between lawful targets 428 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:chanRoblesvirtualLawlibrary
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
cralawlawlibrary
In all of these arrangements, the host state grants U.S. forces access to their military
bases.437 That access is without rental or similar costs to the U.S.438 Further, U.S. forces are
allowed to undertake construction activities in, and make alterations and improvements to,
the agreed locations, facilities, or areas.439 As in EDCA, the host states retain ownership and
jurisdiction over the said bases.440
In fact, some of the host states in these agreements give specific military-related rights to the
U.S. For example, under Article IV(1) of the U.S.-Bulgaria Defense Cooperation Agreement,
"the United States forces x x x are authorized access to and may use agreed facilities and
areas x x x for staging and deploying offerees and materiel, with the purpose of conducting
xxx 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 xxx 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 xxx 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 petition on that issue must be filed before we rule thereon.
We also note that none of the petitions or memoranda has attempted to discuss this issue,
except only to theorize that the U.S. will not come to our aid in the event of an attack outside
of the Pacific. This is a matter of policy and is beyond the scope of this judicial review.
In reference to the issue on telecommunications, suffice it to say that the initial impression of
the facility adverted to does appear to be one of those that require a public franchise by way
of congressional action under Section 11, Article XII of the Constitution. As respondents
submit, however, the system referred to in the agreement does not provide
telecommunications services to the public for compensation.454 It is clear from Article VII(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.
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.ch
SEPARATE CONCURRING OPINION
CARPIO, J.:
The threshold issue in this case is whether the Enhanced Defense Cooperation Agreement
(EDCA) merely implements the existing and ratified 1951 Mutual Defense Treaty1 (MDT), or
whether the EDCA is a new treaty requiring Senate ratification to take effect.
The answer to this question turns on whether, under present circumstances, the attainment of
the purpose of the MDT requires the EDCA. The fundamental rule in treaty interpretation is
that a treaty must be interpreted "in the light of its object and purpose."2
As stated in the MDT, the purpose of the United States (U.S.) and the Philippines in forging
the MDT is to "declare publicly and formally their sense of unity and their common
determination to defend themselves against external armed attack." If the MDT cannot attain
this purpose without the EDCA, then the EDCA merely implements the MDT and Executive
action is sufficient to make the EDCA valid.
A ratified treaty like the MDT must be interpreted to allow the Executive to take all necessary
measures to insure that the treaty's purpose is attained. A ratified treaty cannot be interpreted
to require a second ratified treaty to implement the first ratified treaty, as a fundamental rule is
that a treaty must be interpreted to avoid a "result which is manifestly absurd or
unreasonable."3 This is particularly true to a mutual defense treaty the purpose of which is
mutual self-defense against sudden armed attack by a third state.
However, if the MDT can attain its purpose without the EDCA, then the EDCA is a separate
treaty that requires Senate ratification. I shall discuss why, under present circumstances, the
EDCA is absolutely necessary and essential to attain the purpose of the MDT.
With the departure in 1992 of U.S. military forces from Subic Naval Base and Clark Air Base
in Luzon, a power vacuum resulted in the South China Sea. As in any power vacuum, the
next power would rush in to fill the vacuum. Thus, China, the next power after the U.S., filled
the power vacuum in the South China Sea, which includes the West Philippine Sea.4
In early 1995, barely three years after the departure of U.S. military forces from the
Philippines, China seized Mischief Reef from the Philippines. There was no power to deter
China as the U.S. forces had left. The Philippines did not anticipate that China would rush in
to fill the power vacuum, or if the Philippines anticipated this, it did not upgrade its military to
deter any Chinese aggression. After China seized Mischief Reef in 1995, the Philippines still
did not upgrade its military, particularly its navy.
In 2012, China seized Scarborough Shoal from the Philippines, which could offer no armed
resistance to Chinese naval forces. The Scarborough Shoal seizure finally made the
Philippine Government realize that there was an absolute need to deter China's creeping
invasion of Philippine islands, rocks and reefs in the West Philippine Sea. Thus, the
Philippines rushed the modernization of its navy and air force. The Philippines also agreed
with the U.S. to use the MDT to preposition U.S. war materials in strategic locations in the
Philippines, particularly in the islands of Palawan and Luzon facing the West Philippine Sea.
In modern warfare, the successful implementation of a mutual defense treaty requires the
strategic prepositioning of war materials. Before the advent of guided missiles and drones,
wars could take months or even years to prosecute. There was plenty of time to conscript and
train soldiers, manufacture guns and artillery, and ship war materials to strategic locations
even after the war had started. Today, wars could be won or lost in the first few weeks or
even first few days after the initial outbreak of war.
In modern warfare, the prepositioning of war materials, like mobile anti-ship and anti-aircraft
missiles, is absolutely necessary and essential to a successful defense against armed
aggression, particularly for a coastal state like the Philippines. This is what the EDCA is all
about - the prepositioning in strategic locations of war materials to successfully resist any
armed aggression. Such prepositioning will also publicly telegraph to the enemy that any
armed aggression would be repelled. The enemy must know that we possess the capability,
that is, the war materials, to defend the country against armed aggression. Otherwise, without
such capability, we telegraph to the enemy that further seizure of Philippine islands, rocks
and reefs in the South China Sea would be a walk in the park, just like China's seizure of
Mischief Reef and Scarborough Shoal. Without such capability, we would practically be
inviting the enemy to seize whatever Philippine island, rock or reef it desires to seize in the
West Philippine Sea.
Since 2014, China has started building artificial islands in the Spratlys out of submerged
areas like Mischief Reef and Subi Reef, or out of rocks that barely protrude above water at
high tide like Fiery Cross Reef. China has so far created a 590-hectare artificial island in
Mischief Reef which is only 125 nautical miles (NM) from Palawan, well within the Philippines'
Exclusive Economic Zone (EEZ). In comparison, San Juan City is 595 hectares in area.
China has built a 390-hectare artificial island in Subi Reef, outside the Philippines' EEZ but
within its Extended Continental Shelf (ECS). China has created a 265-hectare artificial island
in Fiery Cross Reef, outside the Philippines' EEZ but within its ECS.
China claims that its island-building activities are for civilian purposes but the configuration of
these artificial islands shows otherwise. The configuration of China's Mischief Reef island,
which is China's largest artificial island in the Spratlys, is that of a combined air and naval
base, with a 3,000-meter airstrip.5 The configuration of China's Subi Reef island is that of a
naval base with a 3,000-meter airstrip. The configuration of China's Fiery Cross Reef island is
that of an airbase with a 3,000-meter airstrip and a harbor for warships.
These three air and naval bases form a triangle in the Spratlys, surrounding the islands
occupied by the Philippines.
Mischief Reef, located mid-way between Palawan and Pagasa, is ideally situated to block
Philippine ships re-supplying Pagasa, the largest Philippine-occupied island in the Spratlys.
Mischief Reef is also close to the gas-rich Reed Bank, the gas field that should replace
Malampaya once Malampaya runs out of gas in 10 to 12 years. Malampaya supplies 40% of
the energy requirement of Luzon. The Reed Bank and Malampaya are well within the
Philippines' EEZ. However, China's 9-dashed lines enclose entirely the Reed Bank and
encroach partly on Malampaya.
It is obvious that China will use the three air and naval bases in its artificial islands to prevent
Philippine ships and planes from re-supplying Philippine-occupied islands in the Spratlys,
forcing the Philippines to abandon its occupied islands. Already, Chinese coast guard vessels
are preventing medium-sized Philippine ships from re-supplying the BRP Sierra Madre, the
dilapidated Philippine landing ship beached in Ayungin Shoal, just 20 NM from Mischief Reef.
Only the Philippines' use of small watercrafts enables the re-supply to the BRP Sierra Madre,
which is manned by about a dozen Philippine marine soldiers. The Philippines' small
watercrafts can navigate the shallow waters of Ayungin Shoal while China's large coast guard
vessels cannot.
With the anticipated installation by China of military facilities and war materials in its three air
and naval bases in the Spratlys, expected to be completed before the end of 2016, China will
begin to aggressively enforce its 9-dashed lines claim over the South China Sea. Under this
claim, China asserts sovereignty not only to all the islands, rocks and reefs in the Spratlys,
but also to 85.7% of the South China Sea, comprising all the waters, fisheries, mineral
resources, seabed and submarine areas enclosed by the 9-dashed lines. Under this claim,
the Philippines will lose 381,000 square kilometers6 of its EEZ in the West Philippine Sea, a
maritime space larger than the total Philippine land area of 300,000 square kilometers.
China's 9-dashed lines claim encroaches on all the traditional fishing grounds of Filipino
fishermen in the South China Sea: Scarborough Shoal, Macclesfield Bank and the Spratlys.
The Philippines, acting by itself, cannot hope to deter militarily China from enforcing its 9-
dashed lines claim in the West Philippine Sea. The Philippines cannot acquire war materials
like anti-ship and anti-aircraft missiles off the shelf. The operation of anti-ship missiles
requires communications with airborne radar or satellite guidance systems. With the
completion of China's air and naval bases before the end of 2016, the Philippines has no time
to acquire, install and operate an anti-ship missile system on its own. Military and security
analysts are unanimous that there is only one power on earth that can deter militarily China
from enforcing its 9-dashed lines claim, and that power is the United States. This is why the
MDT is utterly crucial to the Philippines' defense of its EEZ in the West Philippine Sea.
Of course, the United States has repeatedly stated that the MDT does not cover the disputed
islands, rocks and reefs in the South China Sea. We understand this because at the time the
MDT was signed the Philippine territory recognized by the United States did not include the
Kalayaan Island Group in the Spratlys. However, the MDT provides that an armed attack on
"public vessels or aircraft" (military or coast guard ship or aircraft) of either the United States
or the Philippines in the Pacific area is one of the grounds for a party to invoke mutual
defense under the MDT.7 The United States has officially clarified that the Pacific area
includes the South China Sea.8
If China's navy ships attack a Philippine military ship re-supplying Philippine-occupied islands
in the Spratlys, that will be covered by the MDT. However, unless the U.S. and the
Philippines have prepositioned anti-ship missiles in Palawan, there will be no deterrence to
China, and no swift response from U.S. and Philippine forces. The absence of any deterrence
will likely invite Chinese harassment, or even armed attack, on Philippine re-supply ships.
That will lead to the loss of all Philippine-occupied islands in the Spratlys, as well as the loss
of the gas-rich Reed Bank.
The prepositioning of war materials is a necessary and essential element to achieve the
purpose of the MDT. Article II of the MDT expressly provides:chanRoblesvirtualLawlibrary
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.
(Emphasis supplied)cralawlawlibrary
The prepositioning of war materials is the very essence of the phrase to "maintain and
develop (the Parties') individual and collective capacity to resist armed attack." Without
the prepositioning of war materials, a Party to the MDT cannot maintain and develop the
capacity to resist armed attack. Without the prepositioning of war materials, a Party is simply
and totally unprepared for armed attack.
The 1987 Constitution defines the "national territory" to include not only islands or rocks
above water at high tide but also the seabed, subsoil and other submarine areas "over which
the Philippines has sovereignty or jurisdiction." Article 1 of the 1987 Constitution
provides:chanRoblesvirtualLawlibrary
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)cralawlawlibrary
Thus, the Philippine "national territory" refers to areas over which the Philippines has
"sovereignty or jurisdiction." The Constitution mandates: "The State shall protect the nation's
marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino citizens."9
Under both customary international law and the 1982 United Nations Convention on the Law
of the Sea (UNCLOS), the Philippines has "sovereign rights" and "jurisdiction"10 to exploit
exclusively all the living and non-living resources within its EEZ. Under the UNCLOS, the
Philippines has the sovereign rights to exploit exclusively the mineral resources within its
ECS.11 Under the UNCLOS, the Philippines also has sole "jurisdiction" to create artificial
islands or install structures within its EEZ12 and ECS.13
In short, under international law and in particular under the UNCLOS, the Philippines has
jurisdiction over its EEZ and ECS. Thus, under domestic law, the Philippines' EEZ and ECS
form part of Philippine "national territory" since the Constitution defines "national territory" to
include areas over which the Philippines has "jurisdiction," a term which means less than
sovereignty. However, under international law, the Philippine "national territory" refers to the
areas over which the Philippines has sovereignty, referring to the Philippines' land territory,
archipelagic waters and territorial sea, excluding areas over which the Philippines exercises
only jurisdiction like its EEZ and ECS.
China has already invaded repeatedly Philippine "national territory" in two separate areas,
one in the Kalayaan Island Group in the Spratlys and the other in Scarborough Shoal. When
China seized in 1988 Subi Reef, a submerged area within the Philippines' ECS and beyond
the territorial sea of any high tide feature,14 China invaded Philippine national territory as
defined in the Constitution. When China seized in 1995 Mischief Reef, a submerged area
within the Philippines' EEZ and beyond the territorial sea of any high tide feature, 15 China
invaded Philippine national territory as defined in the Constitution. When China seized in
2012 Scarborough Shoal, a rock above water at high tide and constituting land territory under
international law, China invaded Philippine national territory as defined in the Constitution and
as understood in international law. Republic Act No. 9522, amending the Philippine Baselines
Law, expressly declares that Scarborough Shoal is part of Philippine territory over which the
Philippines exercises "sovereignty and jurisdiction."16
After China's seizure of Scarborough Shoal in 2012, the Philippines finally woke up and
summoned the political will to address the serial and creeping Chinese invasion of Philippine
national territory. Thus, the EDCA was born, to give much needed teeth to the MDT as a
deterrent to further Chinese aggression in the West Philippine Sea. Without the EDCA, the
MDT remains a toothless paper tiger. With the EDCA, the MDT acquires a real and ready
firepower to deter any armed aggression against Philippine public vessels or aircrafts
operating in the West Philippine Sea.
With the EDCA, China will think twice before attacking Philippine military re-supply ships to
Philippine-occupied islands in the Spratlys. With the EDCA, the Philippines will have a
fighting chance to hold on to Philippine-occupied islands in the Spratlys. With the EDCA,
China will think twice before attacking Philippine navy and coast guard vessels patrolling the
West Philippine Sea. This will give the Philippines a fighting chance to ward off China's
impending enforcement of its 9-dashed lines as China's "national boundaries" as shown in its
2013 official vertical map.17
The number and sites of the "agreed locations" to place the prepositioned war materials must
necessarily remain numerous and anonymous. The "agreed locations" must be numerous
enough to survive repeated or surprise armed attacks. There must not only be redundant
"agreed locations" but also dummy "agreed locations" to mislead the enemy. The sites of
many of the "agreed locations" cannot be disclosed publicly because that will give the enemy
the fixed coordinates of the "agreed locations," making them easy targets of long-range
enemy cruise missiles. The number and sites of the "agreed locations" are matters best left to
the sound discretion of the Executive, who is the implementing authority of the MDT for the
Philippines.
The implementation of the MDT is a purely Executive function since the Senate has already
ratified the MDT. The implementation of the MDT is also part of the purely Executive function
of the President as Commander-in-Chief of the Armed Forces. As executor and "chief
architect"18 of the country's relations with foreign countries, including our treaty ally the United
States, the President is constitutionally vested with ample discretion in the implementation of
the MDT. EDCA, being essentially and entirely an implementation of the MDT, is within the
sole authority of the President to enter into as an executive agreement with the U.S.
Article VIII of the MDT provides: "This Treaty shall remain in force indefinitely. Either party
may terminate it one year after notice is given to the other Party." Neither the Philippines nor
the United States has terminated the MDT. On the contrary, the 1998 Visiting Forces
Agreement between the Philippines and the United States, which the Philippine Senate has
ratified, expressly states that the parties are "[reaffirming their obligations under the Mutual
Defense Treaty of August 30, 1951." Thus, the continued validity and relevance of the MDT
cannot be denied.
Moreover, the Senate ratification of the MDT complies with the requirement of Section 25,
Article XVIII19 of the 1987 Constitution that any agreement allowing foreign military facilities in
the Philippines, like the prepositioning of U.S. war materials, must be embodied in a treaty
and ratified by two-thirds vote20 of the Senate. That treaty is the MDT which the Philippine
Senate ratified by two-thirds vote on 12 May 195221 and which the U.S. Senate ratified on 20
March 1952.22
In summary, the EDCA is absolutely necessary and essential to implement the purpose of the
MDT, which on the part of the Philippines, given the existing situation in the West Philippine
Sea, is to deter or repel any armed attack on Philippine territory or on any Philippine public
vessel or aircraft operating in the West Philippine Sea. To hold that the EDCA cannot take
effect without Senate ratification is to render the MDT, our sole mutual self-defense treaty,
totally inutile to meet the grave, even existentialist,23 national security threat that the
Philippines is now facing in the West Philippine Sea.
China has already invaded several geologic features comprising part of Philippine
"national territory" as defined in the Constitution. The territorial integrity of the Philippines
has been violated openly and repeatedly. The President, as Commander-in-Chief of the
Armed Forces, "chief architect" of foreign policy and implementer of the MDT, has decided on
the urgent need to fortify Philippine military defenses by prepositioning war materials of our
treaty ally on Philippine soil. This Court should not erect roadblocks to the President's
implementation of the MDT, particularly since time is of the essence and the President's act
of entering into the EDCA on his own does not violate any provision of the Constitution.
A final word. The EDCA does not detract from the legal arbitration case that the Philippines
has filed against China under UNCLOS. The EDCA brings into the Philippine strategy the
element of credible self-defense. Having refused to participate in the legal arbitration despite
being obligated to do so under UNCLOS, China is now using brute force to assert its claim to
almost the entire South China Sea. Given this situation, the proper equation in defending the
Philippines' maritime zones in the West Philippine Sea is "legal right plus credible self-
defense equals might."
Accordingly, I vote to DISMISS the petitions on the ground that the EDCA merely implements,
and in fact is absolutely necessary and essential to the implementation of, the MDT, an
existing treaty that has been ratified by the Senate.
CONCURRING AND DISSENTING OPINION
LEONARDO-DE CASTRO, J..:
"The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It
is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity
from an external source, would imply a diminution of its sovereignty to the extent of the
restriction, and an investment of that sovereignty to the same extent in that power which
could impose such restriction." xxx.1cralawlawlibrary
I concur with the disposition of the procedural issues but not with the arguments and
conclusions reached as to the substantive issues.
The focus of the present controversy, as mentioned by the Honorable Chief Justice is the
application of Section 25, Article XVIII of the Constitution which
reads:chanRoblesvirtualLawlibrary
ARTICLE XVIII
TRANSITORY PROVISIONS
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.cralawlawlibrary
Section 25, Article XVIII bans foreign military bases, troops, or facilities in Philippine territory,
unless the following requisites are complied with: (1) the presence of foreign military bases,
troops, or facilities should be allowed by a treaty; (2) the treaty must be duly concurred in
by the Philippine Senate and, when Congress so requires, such treaty should be ratified by
a majority of the votes cast by the Filipino people in a national referendum held for that
purpose; and (3) such treaty should be recognized as a treaty by the other contracting
party.2
Couched in negative terms, Section 25, Article XVIII embodies a prohibition: "foreign military
bases, troops, or facilities shall not be allowed in the Philippines," unless the requisites in
the said section are met.
In BAYAN v. Zamora,3 the Court held that Section 25, Article XVIII covers three different
situations: a treaty allowing the presence within the Philippines of (a) foreign military bases,
or (b) foreign military troops, or (c) foreign military facilities, such that a treaty that involves
any of these three standing alone falls within the coverage of the said provision.
BAYAN v. Zamora likewise expounded on the coverage of the two provisions of the
Constitution - Section 21, Article VII and Section 25, Article XVIII - which both require Senate
concurrence in treaties and international agreements. The Court
stated:chanRoblesvirtualLawlibrary
Section 21, Article VII deals with treaties 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 treaties 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 treaties 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.
xxxx
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 hermeneutics that when no distinction is made by law the Court
should not distinguish — Ubi lex non distinguit nee 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, 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:chanRoblesvirtualLawlibrary
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas. This
formulation speaks of three things: foreign military bases, troops or facilities. My first question
is: If the country does enter into such kind of a treaty, must it cover the three-bases, troops or
facilities or could the treaty entered into cover only one or two?
FR. BERN AS. 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.4 (Citations omitted.)
cralawlawlibrary
Furthermore, the wording of Section 25, Article XVIII also provides an indubitable implication:
foreign military bases, troops and facilities have ceased to be allowed in the
Philippines after the expiration in 1991 of the Military Bases Agreement; thereafter, the
same can only be re-allowed upon the satisfaction of all the three requirements set
forth in the Section 25, Article XVIII.
The legal consequence of the above provision with respect to the Military Bases Agreement
(March 14, 1947), the Mutual Defense Treaty (August 30, 1951), the Visiting Forces
Agreement (February 10, 1998), and the Enhanced Defense Cooperation Agreement
([EDCA] April 28, 2014) can be appreciated by an examination of the respective rights and
obligations of the parties in these agreements.
Effect of Section 25, Article XVIII of
the Constitution on the Military Bases
Agreement, the Mutual Defense Treaty,
the Visitins Forces Agreement, and the
Enhanced Defense Cooperation Agreement
On July 4, 1946, the United States recognized the independence of the Republic of the
Philippines, thereby apparently relinquishing any claim of sovereignty thereto. However, on
March 14, 1947, the Philippines and the United States entered into a Military Bases
Agreement (MBA) which granted to the United States government the right to retain5 the use
of the bases listed in the Annexes of said agreement.6 Within said bases, the United States
was granted "the rights, power and authority within the bases which are necessary for the
establishment, use, operation and defense thereof or appropriate for the control thereof and
all the rights, power and authority within the limits of territorial waters and air space adjacent
to, or in the vicinity of, the bases which are necessary to provide access to them, or
appropriate for their control."7 The term of the original agreement was "for a period of ninety-
nine years subject to extension thereafter as agreed by the two Governments."8 In 1966, the
parties entered into the Ramos-Rusk Agreement, which reduced the term of the Military
Bases Agreement to 25 years from 1966, or until 1991.
On August 30, 1951, the Philippines and the United States entered into the Mutual Defense
Treaty (MDT), whereby the parties recognized 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 process."9 The
treaty provided that it "shall remain in force indefinitely," although either party "may terminate
it one year after notice has been given to the other Party."10 It bears pointing out that there is
no explicit provision in the MDT which authorized the presence in the Philippines of military
bases, troops, or facilities of the United States.
In 1986, during the early stages of the deliberations of the Constitutional Commission, and in
view of the impending expiration of the MBA in 1991, the members of the Commission
expressed their concern that the continued presence of foreign military bases in the country
would amount to a derogation of national sovereignty. The pertinent portion of the
deliberations leading to the adoption of the present Section 25, Article XVIII is quoted as
follows:chanRoblesvirtualLawlibrary
FR. BERNAS. My question is: Is it the position of the committee that the presence of foreign
military bases in the country under any circumstances is a derogation of national
sovereignty?
MR. AZCUNA. It is difficult to imagine a situation based on existing facts where it would not.
However, in the abstract, it is possible that it would not be that much of a derogation. I have in
mind, Madam President, the argument that has been presented. Is that the reason why there
are U.S. bases in England, in Spain and in Turkey? And it is not being claimed that their
sovereignty is being derogated. Our situation is different from theirs because we did not lease
or rent these bases to the U.S. The U.S. retained them from us as a colonial power.
FR. BERNAS. So, the second sentence, Madam President, has specific reference to what
obtains now.
MR. AZCUNA. Yes. It is really determined by the present
situation.
FR. BERNAS. Does the first sentence tolerate a situation radically different from what obtains
now? In other words, if we understand sovereignty as auto-limitation, as a people's power to
give up certain goods in order to obtain something which may be more valuable, would it be
possible under this first sentence for the nation to negotiate some kind of a treaty agreement
that would not derogate against sovereignty?
MR. AZCUNA. Yes. For example, Madam President, if it is negotiated on a basis of true
sovereign equality, such as a mutual ASEAN defense agreement wherein an ASEAN force is
created and this ASEAN force is a foreign military force and may have a basis in the member
ASEAN countries, this kind of a situation, I think, would not derogate from sovereignty.
MR. NOLLEDO. Madam President, may I be permitted to make a comment on that beautiful
question. I think there will be no derogation of sovereignty if the existence of the military
bases as stated by Commissioner Azcuna is on the basis of a treaty which was not only
ratified by the appropriate body, like the Congress, but also by the people.
I would like also to refer to the situation in Turkey where the Turkish government has control
over the bases in Turkey, where the jurisdiction of Turkey is not impaired in anyway, and
Turkey retains the right to terminate the treaty under circumstances determined by the host
government. I think under such circumstances, the existence of the military bases may not be
considered a derogation of sovereignty, Madam President.
FR. BERN AS. Let me be concrete, Madam President, in our circumstances. Suppose they
were to have this situation where our government were to negotiate a treaty with the
United States, and then the two executive departments in the ordinary course of
negotiation come to an agreement. As our Constitution is taking shape now, if this is
to be a treaty at all, it will have to be submitted to our Senate for its ratification.
Suppose, therefore, that what was agreed upon between the United States and the
executive department of the Philippines is submitted and ratified by the Senate, then it
is further submitted to the people for its ratification and subsequently, we ask the
United States: "Complete the process by accepting it as a treaty through ratification by
your Senate as the United States Constitution requires," would such an arrangement
be in derogation of sovereignty?
MR. NOLLEDO. Under the circumstances the Commissioner just mentioned, Madam
President, on the basis of the provision of Section 1 that "sovereignty resides in the
Filipino people," then we would not consider that a derogation of our sovereignty on
the basis and expectation that there was a plebiscite.11 (Emphasis
supplied.)cralawlawlibrary
As a safeguard against the derogation of national sovereignty, the present form of Section 25,
Article XVIII was finalized by the Commission and ratified by the Filipino people in 1987.
On September 16, 1991, the Senate rejected the proposed Treaty of Friendship, Cooperation
and Security, which would have extended the presence of US military bases in the
Philippines. Nevertheless, the defense and security relationship between the Philippines and
the United States continued in accordance with the MDT.12
Upon the expiration of the MBA in 1991, Section 25, Article XVIII came into effect. The
presence of foreign military bases, troops or facilities in the country can only be allowed upon
the satisfaction of all three requirements set forth in Section 25, Article XVIII.
On February 10, 1998, the Philippines and the United States entered into the Visitng Forces
Agreement (VFA), which required the Philippines to facilitate the admission of United States
personnel,13 a term defined in the same treaty as "United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government."14
United States Government equipment, materials, supplies, and other property imported into
the Philippines in connection with activities to which the VFA applies, while not expressly
stated to be allowed into the Philippines by the provisions of the VFA, were nevertheless
declared to be free from Philippine duties, taxes and similar charges. Title thereto was also
declared to remain with the United States.15
The VFA expressly allowed the importation into the Philippines of reasonable quantities of
personal baggage, personal effects, and other property for the personal use of United States
personnel.16 The VFA likewise expressly allowed the entry into the Philippines of (1) aircraft
operated by or for the United States armed forces upon approval of the Government of the
Philippines in accordance with procedures stipulated in implementing arrangements; and (2)
vessels operated by or for the United States armed forces upon approval of the Government
of the Philippines, in accordance with international custom and practice and such agreed
implementing arrangements as necessary.17
The VFA also provided for the jurisdiction over criminal and disciplinary cases over United
States personnel with respect to offences committed within the Philippines. 18
The VFA further stated that the same 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.19
Subsequently, the constitutionality of the VFA was questioned before the Court in the
aforementioned October 10, 2000 case of BAYAN v. Zamora,20 and again in the February 11,
2009 case of Nicolas v. Romulo.21 In both cases, the Court held that Section 25, Article XVIII
of the Constitution is applicable, but the requirements thereof were nevertheless complied
with. In Nicolas, however, the implementing Romulo-Kenney Agreements of December 19
and 22, 2006 concerning the custody of Lance Corporal Daniel J. Smith, who was charged
with the crime of rape, were declared not in accordance with the VFA.
Thereafter, on April 28, 2014, the governments of the Philippines and the United States
entered into the assailed EDCA.
The EDCA
Under the EDCA, the Philippines by mutual agreement with the United States, shall provide
the United States forces the access and use of portions of Philippine territory. United States
forces are "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." These
portions of Philippine territory that will be made available to the US are called "Agreed
Locations," which is a new concept defined under Article 11(4) of the EDCA
as:chanRoblesvirtualLawlibrary
4. "Agreed Locations" means facilities and areas that are provided by the Government of the
Philippines through the AFP and that the United States forces,22 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 further be described in implementing arrangements. (Emphasis
supplied.)cralawlawlibrary
Aside from the right to access and to use the Agreed Locations, the United States may
undertake the following types of activities within the Agreed Locations: security cooperation
exercises; joint and combined training activities; humanitarian and disaster relief activities;
and such other activities that as may be agreed upon by the Parties."23 Article 111(1) of the
EDCA further states in detail the activities that the United States may conduct inside the
Agreed Locations:chanRoblesvirtualLawlibrary
1. 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
aircrafts 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. (Emphasis supplied.)cralawlawlibrary
The United States may access and use the Agreed Locations without any obligation on its
part to pay any rent or similar costs.24
In addition to the right to access and to use the Agreed Locations and to conduct various
activities therein, the United States, upon request to the Philippines' Designated Authorities, 25
can further temporarily access 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).26
The United States is also granted operational control of Agreed Locations to do construction
activities, make alterations or improvements of the Agreed Locations.27 All buildings, non-
relocatable structures, and assemblies affixed to the land in the Agreed Locations, including
[those] altered or improved by United States forces, remain the property of the Philippines.
Permanent buildings constructed by the United States forces become the property of the
Philippines, once constructed, but shall be used by the United States forces until no longer
required.28
Incidental to the access and use of the Agreed Locations, the US is granted the use of water,
electricity and other public utilities,29 as well as the use of the radio spectrum in relation to the
operation of its own telecommunications system.30
As to the management of the Agreed Locations, the United States forces are authorized to
exercise all rights and authorities within the Agreed Locations that are necessary for their
operational control or defense, including taking appropriate measures to protect United States
forces and United States contractors. The United States should coordinate such measures
with appropriate authorities of the Philippines.31
The United States is authorized to preposition and store defense equipment, supplies, and
materiel ("prepositioned materiel"), including but not limited to, humanitarian assistance and
disaster relief equipment, supplies and material, at Agreed Locations.32 The prepositioned
materiel of the United States forces shall be for the exclusive use of United States forces, and
full title to all such.equipment, supplies and materiel remains with the United States. 33 United
States forces and United States contractors34 shall have unimpeded access to Agreed
Locations for all matters relating to the prepositioning and storage of defense equipment, thereof and all the rights, power and authority undertake such activities on, and make
supplies, and materiel, including delivery, management, inspection, use, maintenance, and within the limits of territorial waters and air alterations and improvements to, Agreed
removal of such equipment, supplies and materiel.35 The United States forces and United space adjacent to, or in the vicinity of, the Locations, x x x.
States contractors shall retain title to all equipment, materiel, supplies, relocatable structures, bases which are necessary to provide access
and other movable property that have been imported into or acquired within the territory of the to them, or appropriate for their control. Article VI: SECURITY
Philippines by or on behalf of United States forces.36

Considering the presence of US armed forces: military personnel, vehicles, vessels, and 3. United States forces are authorized to
aircrafts and other defensive equipment, supplies, and materiel in the Philippines, for obvious exercise all rights and authorities within
military purposes and with the obvious intention of assigning or stationing them within the Agreed Locations that are necessary for
Agreed Locations, said Agreed Locations, for all intents and purposes, are considered military their operational control or defense x x x.
bases and fall squarely under the definition of a military base under Section 2, Presidential Article III: DESCRIPTION OF RIGHTS Article III: AGREED LOCATIONS
Decree No. 1227, otherwise known as "Punishing Unlawful Entry into Any Military Base in the
Philippines," which states:chanRoblesvirtualLawlibrary 4. The Philippines hereby grants the United
2. Such rights, power and authority shall States, through bilateral security
SECTION 2. The term "military base" as used in this decree means any military, air, naval, include, inter alia, the right, power and mechanisms, such as the MDB and SEB,
or coast guard reservation, base, fort, camp, arsenal, yard, station, or installation in authority: operational control of Agreed Locations for
the Philippines. (Emphasis supplied.) construction activities and authority to
cralawlawlibrary undertake such activities on, and make
(a) to construct (including dredging and
filling), operate, maintain, utilize, occupy, alterations and improvements to, Agreed
In the same vein, Article XXVI of the 1947 RP-US Military Bases Agreement (MBA) defined a garrison and control the bases; Locations, x x x.
military base as "areas named in Annex A and Annex B and such additional areas as may be
acquired for military purposes pursuant to the terms of this Agreement."37 (b) to improve and deepen the harbors,
channels, entrances and anchorages, and to
Considering further that the United States armed forces stationed in the Philippines, as well construct or maintain necessary roads and
as their relocatable structures, equipment and materiel are owned, maintained, controlled, bridges affording access to the bases;
and operated by the United States within Philippine territory, these Agreed Locations are
clearly overseas military bases of the US with RP as its host country. Article III: DESCRIPTION OF RIGHTS Article III: AGREED LOCATIONS

The EDCA provided for an initial term of ten years, which thereafter shall continue in force 2. Such rights, power and authority shall 5. The Philippine Designated Authority and
automatically, unless terminated by either party by giving one year's written notice through include, inter alia, the right, power and its authorized representative shall have
diplomatic channels of its intention to terminate the agreement.38 authority : access to the entire area of the Agreed
Locations. Such access shall be provided
Interestingly, the EDCA has similar provisions found in the 1947 xxxx promptly consistent with operational
MBA:chanRoblesvirtualLawlibrary safety and security requirements in
accordance with agreed procedures
(c) to control (including the right to
developed by the Parties.
Military Bases Agreement Enhanced Defense Cooperation prohibit) in so far as may be required for the
(March 14,1947) Agreement (April 28, 2014) efficient operation and safety of the bases,
and within the limits of military necessity, Article IV: EQUIPMENT, SUPPLIES, AND
Article III: DESCRIPTION OF RIGHTS Article III: AGREED LOCATIONS MATERIEL
anchorages, moorings, landings, takeoffs,
movements and operation of ships and
1. It is mutually agreed that the United States 4. The Philippines hereby grants the United waterborne craft, aircraft and other vehicles 4. United States forces and United States
shall have the rights, power and authority States, through bilateral security on water, in the air or on land comprising or contractors shall have unimpeded access to
within the bases which are necessary for the mechanisms, such as the MDB and SEB, in the vicinity of the bases; Agreed Locations for all matters relating to
establishment, use, operation and defense operational control of Agreed Locations for the prepositioning and storage of defense
thereof or appropriate for the control construction activities and authority to

Article III: DESCRIPTION OF RIGHTS
2. Such rights, power and authority shall
include, inter alia, the right, power and
authority:
xxxx
(e) 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.
equipment, supplies, and materiel,
including delivery, management,
inspection, use, maintenance, and
removal of such equipment, supplies and
materiel.
Article III: AGREED LOCATIONS
1. 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 and 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; deplovine
forces and materiel; and such other activities
as the Parties may agree.
Article IV: EQUIPMENT, SUPPLIES, AND
MATERIEL
1. The Philippines hereby authorizes the
United States forces, x x x to preposition
and store defense equipment, supplies,
and materiel ("prepositioned materiel") x x
x.
xxxx
3. The prepositioned materiel of the
United States forces shall be for the
exclusive use of the United States forces,
and full title to all such equipment, supplies,
and materiel remains with the United States.
United States forces shall have control over
the access to and disposition of such
prepositioned materiel and shall have the
unencumbered right to remove such
prepositioned materiel at any time from the
territory of the Philippines. (Emphases
supplied.)
The EDCA is not a mere
implementing agreement of
the MPT or the VFA
As can be seen in the above table of comparison, these EDCA provisions establishes
military areas similar to that in the Military Bases Agreement, and for that reason alone,
the EDCA is far greater in scope than both the Mutual Defense Treaty and the Visiting Forces
Agreement. The EDCA is not a mere implementing agreement of either the MDT or the VFA.
The EDCA is an international agreement that allows the presence in the Philippines of
foreign military bases, troops and facilities, and thus requires that the three requisites
under Section 25, Article XVIII be complied with. The EDCA must be submitted to the Senate
for concurrence.
The majority opinion posits, inter alia, that the President may enter into an executive
agreement on foreign military bases, troops, or facilities if: (a) it "is not the principal
agreement that first allowed their entry or presence in the Philippines," or (b) it merely
aims to implement an existing law or treaty. Likewise, the President alone had the choice to
enter into the EDCA by way of an executive agreement or a treaty. Also, the majority
suggests that executive agreements may cover the matter of foreign military forces if it
involves detail adjustments of previously existing international agreements.
The above arguments fail to consider that Section 25, Article XVIII of the Constitution covers
three distinct and mutually independent situations: the presence of foreign military bases or
troops or facilities. The grant of entry to foreign military troops does not necessarily allow the
establishment of military bases or facilities.39
Generally, the parties to an international agreement are given the freedom to choose the form
of their agreement.
International agreements may be in the form of: (1) treaties, which require legislative
concurrence after executive ratification; or (2) executive agreements, which 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. Under Article 2 of the Vienna
Convention on the Law of Treaties, a treaty is defined 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.40
In the 1961 case of Commissioner of Customs v. Eastern Sea Trading,41 the Court had
occasion to state that "[international agreements involving political issues or changes of
national policy and those involving international arrangements of a permanent character
usually take the form of treaties. But international agreements embodying adjustments of
detail carrying out well-established national policies and traditions and those involving
arrangements of a more or less temporary nature usually take the form of executive
agreements."
In the more recent case of Bayan Muna v. Romulo,42 the Court expounded on the above
pronouncement in this wise:chanRoblesvirtualLawlibrary
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.
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. x x x 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:chanRoblesvirtualLawlibrary
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. (Citations omitted.)
cralawlawlibrary
However, it must be emphasized that while in the above case, the Court called attention to
"one type of executive agreement which is a treaty-authorized or a treaty-implementing
executive agreement, which necessarily would cover the same matter subject of the
underlying treaty," still, the Court cited the special situation covered by Section 25, Article
XVIII of the Constitution which explicitly prescribes the form of the international agreement.
The Court stated:chanRoblesvirtualLawlibrary
But over and above the foregoing considerations is the fact that — save for the situation
and matters contemplated in See. 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.43 (Emphasis supplied, citation omitted.)cralawlawlibrary
Clearly, the Court had since ruled that when the situation and matters contemplated in Sec.
25, Article XVIII obtains, i.e., when the subject matter of an international agreement involves
the presence of foreign military bases, troops or facilities, a treaty is required and that the
same must be submitted to the Senate for the latter's concurrence. In BAY AN v. Zamora,44
the Court held that Section 25, Article XVIII, like Section 21, Article VII, embodies a phrase in
the negative, i.e., "shall not be allowed" and therefore, the concurrence of the Senate is
indispensable to render the treaty or international agreement valid and effective.
What the majority did is to carve out exceptions to Section 25, Article XVIII when none is
called for.
As previously discussed, the language of Section 25, Article XVIII is clear and unambiguous.
The cardinal rule is that the plain, clear and unambiguous language of the Constitution should
be construed as such and should not be given a construction that changes its meaning. The
Court also enunciated in Chavez v. Judicial and Bar Council that:chanRoblesvirtualLawlibrary
The Constitution evinces the direct action of the Filipino people by which the fundamental
powers of government are established, limited and defined and by which those powers are
distributed among the several departments for their safe and useful exercise for the benefit of
the body politic. The Framers reposed their wisdom and vision on one suprema lex to be the
ultimate expression of the principles and the framework upon which government and society
were to operate. Thus, in the interpretation of the constitutional provisions, the Court firmly
relies on the basic postulate that the Framers mean what they say. The language used in
the Constitution must be taken to have been deliberately chosen for a definite
purpose. Every word employed in the Constitution must be interpreted to exude its
deliberate intent which must be maintained inviolate against disobedience and
defiance. What the Constitution clearly says, according to its text, compels acceptance
and bars modification even by the branch tasked to interpret it. (Emphasis supplied;
citation omitted.)cralawlawlibrary
The majority opinion posits that the EDCA is consistent with the content, purpose and
framework of the MDT and the VFA. As such, the majority argues that the EDCA may be in
the form of an executive agreement as it merely implements the provisions of the MDT and
the VFA.
I disagree. Compared closely with the provisions of the MDT and the VFA, the EDCA
transcends in scope and substance the subject matters covered by the aforementioned
treaties. Otherwise stated, the EDCA is an entirely new agreement unto itself.
The MDT in relation to the EDCA
We noted in Lim v. Executive Secretary47 that the MDT has been described as the "core" of
the defense relationship between the Philippines and its traditional ally, the United States.
The aim of the treaty is to enhance the strategic and technological capabilities of our armed
forces through joint training with its American counterparts.
As explicitly pronounced in its declaration of policies, the MDT was entered into between the
Philippines and the United States in order to actualize their desire "to declare publicly and
formally their sense of unity and their common determination to defend themselves against
external armed attack"48 and "further to strengthen their present efforts to collective
defense for the preservation of peace and security pending the development of a more
comprehensive system of regional security in the Pacific area."49
Under Article II of the MDT, the parties undertook "separately and jointly by self-help and
mutual aid" to "maintain and develop their individual and collective capacity to resist armed
attack."50 Article III thereof states that the parties to the treaty shall "consult together from
time to time regarding the implementation of [the] 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."51
Moreover, Article IV states that the individual parties to the treaty "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 process."52 This provision highlights the need for each party to follow their
respective constitutional processes and, therefore, the MDT is not a self-executing
agreement. It follows that if the Philippines aims to implement the MDT in the manner that the
majority opinion suggests, such implementation must adhere to the mandate of Section 25,
Article XVIII of the Constitution.
Also, under the above article, the parties are thereafter obligated to immediately report to the
Security Council of the United Nations the occurrence of any such armed attack and all the
measures taken as result thereof. Said measures shall be terminated when the Security
Council has taken the measures necessary to restore and maintain international peace and
security.53 Article V of the treaty explained that "an armed attack on either of the Parties is
deemed to include an armed attack on the metropolitan territory of either of the Parties, or
on the island territories under its jurisdiction in the Pacific or on its armed forces,
public vessels or aircraft in the Pacific."54
Under Article VIII of the treaty, the parties agreed that the treaty shall remain in force
indefinitely and that either party may terminate it one year after notice has been given to the
other party.55
Clear from the foregoing provisions is that the thrust of the MDT pertains to the furtherance of
the avowed purpose of the parties thereto of maintaining and developing their individual and
collective capacity to resist external armed attack only in the metropolitan territory of either
party or in their island territories in the Pacific Ocean. Accordingly, the territories of the
parties other than those mentioned are not covered by the MDT.
Conspicuously absent from the MDT are specific provisions regarding the presence in
Philippine territory - whether permanent or temporary - of foreign military bases, troops, or
facilities. The MDT did not contemplate the presence of foreign military bases, troops or
facilities in our country in view of the fact that it was already expressly covered by the MBA
that was earlier entered into by the Philippines and the United States in 1947. Moreover, the
MDT contains no delegation of power to the President to enter into an agreement relative to
the establishment of foreign military bases, troops, or facilities in our country. The MDT
cannot also be treated as allowing an exception to the requirements of Section 25, Article
XVIII of the Constitution, which took effect in 1987. As explained above, the reference to
constitutional processes of either party in the MDT renders it obligatory that the Philippines
follow Section 25, Article XVIII of the Constitution.
Indeed, the MDT covers defensive measures to counter an armed attack against either of the
parties' territories or armed forces but there is nothing in the MDT that specifically authorizes
the presence, whether temporary or permanent, of a party's bases, troops, or facilities in the
other party's territory even during peace time or in mere anticipation of an armed attack.
On the other hand, the very clear-cut focal point of the EDCA is the authority granted to the
United States forces and contractors to have unimpeded access to so-called Agreed
Locations - which can be anywhere in the Philippines - and to build there military facilities and
use the same to undertake various military activities. The very wording of the EDCA shows
that it undoubtedly deals with the presence of foreign military bases, troops, and facilities in
Philippine territory.
Thus, contrary to the posturing of the majority, the presence of foreign military bases, troops,
or facilities provided under the EDCA cannot be traced to the MDT. Moreover, the general
provisions of the MDT cannot prevail over the categorical and specific provision of Section
25, Article XVIII of the Constitution.
As will be further highlighted in the succeeding discussion, the EDCA creates new rights,
privileges and obligations between the parties thereto.
The VFA in relation to the EDCA
With respect to the VFA, the EDCA likewise surpasses the provisions of the said former
treaty.
The VFA primarily deals with the subject of allowing elements of the United States armed
forces to visit the Philippines from time to time for the purpose of conducting activities,
approved by the Philippine government, in line with the promotion and protection of the
common security interests of both countries.
In the case of BAYAN v. Zamora,56 the Court ruled that the VFA "defines the treatment of
United States troops and personnel visiting the Philippines," "provides for the guidelines to
govern such visits of military personnel," and "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."
We likewise reiterated in Lim v. Executive Secretary,57 that:chanRoblesvirtualLawlibrary
The VFA provides the "regulatory mechanism" by which "United States military and civilian
personnel [may visit] temporarily in the Philippines in connection with activities approved by
the Philippine Government." It contains provisions relative to entry and departure of American
personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and
exportation, movement of vessels and aircraft, as well as the duration of the agreement and
its termination. It is the VFA which gives continued relevance to the MDT despite the passage
of years. Its primary goal is to facilitate the promotion of optimal cooperation between
American and Philippine military forces in the event of an attack by a common
foe.cralawlawlibrary
To a certain degree, the VFA is already an amplification of the MDT in that it allows the
presence of visiting foreign troops for cooperative activities in peace time. Thus, in line with
the mandate of Section 25, Article XVIII of the Constitution, the VFA is embodied in a treaty
concurred in by the Senate.
In particular, the coverage of the VFA is as follows:chanRoblesvirtualLawlibrary
1) The admission of United States personnel and their departure from Philippines in
connection with activities covered by the agreement, and the grant of exemption to
United States personnel from passport and visa regulations upon entering and
departing from the Philippines;58
2) The validity of the driver's license or permit issued by the United States, thus giving
United States personnel the authority to operate military or official vehicles within the
Philippines;59
3) The rights of the Philippines and the United States in matters of criminal jurisdiction
over United States personnel who commit offenses within the Philippine territory and
punishable under Philippine laws;60
4) The importation and exportation of equipment, materials, supplies and other
property, by United States personnel free from Philippine duties, taxes and similar
charges;61
5) The movement of United States aircrafts, vessels and vehicles within Philippine
territory;62 and
6) The duration and termination of the agreement.63
cralawlawlibrary
In contrast, the EDCA specifically deals with the following
matters:chanRoblesvirtualLawlibrary
1) The authority of the United States forces to access facilities and areas, termed as
"Agreed Locations," and the activities that may be allowed therein;64
2) The grant to the United States of operational control of Agreed Locations to do
construction activities and make alterations or improvements thereon;65
3) The conditional access to the Agreed Locations of the Philippine Designated
Authority and its authorized representative;66
4) The storage and prepositioning of defense equipment, supplies and materiel, as well
as the unimpeded access granted to the United States contractors to the Agreed
Locations in matters regarding the prepositioning, storage, delivery, management,
inspection, use, maintenance and removal of the defense equipment, supplies, and
materiel; and the prohibition that the preposition materiel shall not include nuclear
weapons;67
5) a) The ownership of the Agreed Locations by the Philippines, b) the ownership of
the equipment, materiel, supplies, relocatable structures and other moveable
property imported or acquired by the United States, c) the ownership and use of the
buildings, non-relocatable structures, and assemblies affixed to the land inside the
Agreed Locations;68
6) The cooperation between the parties in taking measures to ensure protection, safety
and security of United States forces, contractors and information in Philippine
territory; the primary responsibility of the Philippines to secure the Agreed Locations,
and the right of the United States to exercise all rights and authorities within the
Agreed Locations that are necessary for their operational control or defense;69
7) The use of water, electricity and other public utilities;70
8) The use of the radio spectrum in connection with the operation of a
telecommunications system by the United States;71
9) The authority granted to the of the United States to contract for any materiel,
supplies, equipment, and services (including construction) to be furnished or
undertaken inside Philippine territory;72
10) The protection of the environment and human health and safety, and the
observance of Philippine laws on environment and health, and the prohibition
against the intentional release of hazardous waste by the United States and the
containment of thereof in ease a spill occurs;73
 11) The need to execute implementing arrangements to address details concerning the
presence of United States forces at the Agreed Locations and the functional
relations between the United States forces and the AFP with respect to the Agreed
Locations;74 and
12) The resolution of disputes arising from the EDCA through consultation between the
parties.75
cralawlawlibrary
Initially, what is abundantly clear with the foregoing enumeration is that the EDCA is an
entirely new creation. The provisions of the EDCA are not found in or have no corresponding
provisions in the VFA. They cover entirely different subject matters and they create new and
distinct rights and obligations on the part of the Philippines and the United States.
Furthermore, as to the nature of the presence of foreign military troops in this country, the
VFA is explicit in its characterization that it is an agreement between the governments of the
Philippines and the United States regarding the treatment of United States Armed Forces
visiting the Philippines. The Preamble of the VFA likewise expressly provides that, "noting
that from time to time elements of the United States armed forces may visit the Republic of
the Philippines"76 and "recognizing the desirability of defining the treatment of United States
personnel visiting the Republic of the Philippines"77 the parties to the VFA agreed to enter
into the said treaty. The use of the word visit is very telling. In its ordinary usage, to visit is to
"stay temporarily with (someone) or at (a place) as a guest or tourist" or to "go to see
(someone or something) for a specific purpose."78 Thus, the word visit implies the
temporariness or impermanence of the presence at a specific location.
On the other hand, under the EDCA, United States forces and United States contractors are
permitted to stay in the Agreed Locations to undertake military activities therein without any
clear limitation as to the duration of their stay. Moreover, they are given unimpeded
access to Agreed Locations to conduct different activities that definitely were not
contemplated under the VFA.
The Court's ruling in Lim v. Executive Secretary79 provides some insights as to the scope of
activities germane to the intention of the VFA. Thus:chanRoblesvirtualLawlibrary
The first question that should be addressed is whether "Balikatan 02-1" is covered by the
Visiting Forces Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much
help can be had therefrom, unfortunately, since the terminology employed is itself the source
of the problem. The VFA permits United States personnel to engage, on an impermanent
basis, in "activities," the exact meaning of which was left undefined. The expression is
ambiguous, permitting a wide scope of undertakings subject only to the approval of the
Philippine government. 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." All other activities, in
other words, are fair game.
xxxx
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, citations omitted.)cralawlawlibrary
The above discussion clearly shows that the VFA was intended for non-combat activities
only.
In the instant case, the OSG averred that the entry of the United States forces into the
Agreed Location is borne out of "military necessity."80 Military necessity means the necessity
attending belligerent military operations that is held to justify all measures necessary to bring
an enemy to complete submission excluding those (as cruelty, torture, poison, perfidy,
wanton destruction) that are forbidden by modern laws and customs of war.81
In the instant case, some of the activities that the United States forces will undertake within
the Agreed Locations such as prepositioning of defense equipment, supplies and materiel,
and deploying of forces and materiel are actual military measures supposedly put into place
in anticipation of battle. To preposition means "to place military units, equipment, or supplies
at or near the point of planned use or at a designated location to reduce reaction time, and to
ensure timely support of a specific force during initial phases of an operation."82 On the other
hand, materiel is defined as "all items necessary to equip, operate, maintain, and support
military activities without distinction as to its application for administrative or combat
purposes."83 Also, to deploy means "to place or arrange (armed forces) in battle disposition or
formation or in locations appropriate for their future employment."84 Deployment also means
"the rotation of forces into and out of an operational area."85
The EDCA likewise allows the construction of permanent buildings, which the United States
forces can utilize until such time that they no longer need the use thereof. The construction of
permanent buildings, including the alteration or improvement by the United States of existing
buildings, structures and assemblies affixed to the land, are certainly necessary not only for
the accommodation of its troops, bunkering of vessels, maintenance of its vehicles, but also
the creation of the proper facilities for the storage and prepositioning of its defense materiel.
This grant of authority to construct new buildings and the improvement of existing buildings
inside the Agreed Locations - which buildings are to be used indefinitely - further evinces the
permanent nature of the stay of United States forces and contractors in this country under the
EDCA. This is a far cry from the temporary visits of United States armed forces contemplated
in the VFA.
Moreover, aside from agreements that the Philippines and the United States may
subsequently enter into with respect to the access of the United States forces in the Agreed
Locations on a "rotational basis,"86 and other activities that the United States may conduct
therein,87 the EDCA also contains provisions requiring the execution of further "implementing
arrangements" with regard to description of the Agreed Locations, 88 "[funding] for
construction, development, operation and maintenance costs at the Agreed Locations," 89 and
"additional details concerning the presence of the United States forces at the Agreed
Locations and the functional relations between the United States forces and the AFP with
respect to Agreed Locations."90
Article 11(4) of the EDCA states that the Agreed Locations shall be provided by the Philippine
Government through the AFP. What is readily apparent from said article is that the AFP is
given a broad discretion to enter into agreements with the United States with respect to the
Agreed Locations. The grant of such discretion to the AFP is without any guideline, limitation,
or standard as to the size, area, location, boundaries and even the number of Agreed
Locations to be provided to the United States forces. As there is no sufficient standard in the
EDCA itself, and no means to determine the limits of authority granted, the AFP can exercise
unfettered power that may have grave implications on national security. The intervention of
the Senate through the constitutionally ordained treaty-making process in defining the new
national policy concerning United States access to Agreed Locations enunciated in the
EDCA, which has never been before expressly or impliedly authorized, is imperative and
indispensible for the validity and effectivity of the EDCA.
The above distinctions between the EDCA and the VFA, therefore, negate the OSG's
argument that the EDCA merely involves "adjustments in detail" of the VFA. To my mind, the
EDCA is the general framework for the access and use of the Agreed Locations by the United
States forces and contractors rather than an implementing instrument of both the MDT and
the VFA.
As stated above, Section 25, Article XVIII contemplates three different situations: a treaty
concerning the allowance within the Philippines of (a) foreign military bases, (b) foreign
military troops, or (c) foreign military facilities, such that a treaty that involves any of these
three standing alone would fall within the coverage of the said provision. The VFA clearly
contemplates only visits of foreign military troops.
The VFA, which allows the presence of the units of the United States military troops, cannot
by any stretch of the imagination include any arrangement that practically allows the
establishment of United States military bases or facilities in the so-called Agreed Locations
under the EDCA. Thus, the EDCA goes far-beyond the arrangement contemplated by the
VFA and therefore it necessarily requires Senate concurrence as mandated by Section 25,
Article XVIII of the Constitution. In the same vein, the initial entry of United States troops
under the VFA cannot, as postulated by the ponencia, justify a "treaty-authorized" presence
under the EDCA, since the presence contemplated in the EDCA also pertains to the
establishment of foreign military bases or facilities, and not merely visiting troops.
The argument that the entry of the United States bases, troops and facilities under the EDCA
is already allowed in view of the "initial entry" of United States troops under the VFA glaringly
ignores that the entry of visiting foreign military troops is distinct and separate from the
presence or establishment of foreign military bases or facilities in the country under Section
25, Article XVIII of the Constitution.
To reiterate, the EDCA is entirely a new treaty, separate and distinct from the VFA and the
MDT. Hence, it must satisfy the requirements under Section 25, Article XVIII of the
Constitution. The Senate itself issued Resolution No. 105 on November 10, 2015, whereby it
expressed its "definite stand on the non-negotiable power of the Senate to decide whether a
treaty will be valid and effective depending on the Senate concurrence" and resolved "that the
RP-US EDCA [is a] treaty [that] requires Senate concurrence in order to be valid and
effective."
Incidentally, with respect to the VFA, there is a difference of opinion whether or not the same
is an implementing agreement of the MDT, as the latter does not confer authority upon the
United States President (or the Philippine President) to enter into an executive agreement to
implement said treaties. Still, in Nicolas v. Romulo,91 the Court noted that even if the VFA was
treated as an implementing agreement of the MDT, the VFA was submitted to the Senate for
concurrence.
By no means should this opinion be construed as one questioning the President's intention
and effort to protect our national territory and security. However, in the case of Tawang Multi-
purpose Cooperative v. La Trinidad Water District92 the Court
said:chanRoblesvirtualLawlibrary
There is no "reasonable and legitimate" ground to violate the Constitution. The Constitution
should never be violated by anyone. Right or wrong, the President, Congress, the Court, x x x
have no choice but to follow the Constitution. Any act, however noble its intentions, is
void if it violates the Constitution. This rule is basic.
In Social Justice Society, the Court held that, "In the discharge of their defined functions, the
three departments of government have no choice but to yield obedience to the commands of
the Constitution. Whatever limits it imposes must be observed." In Sabio, the Court held that,
"the Constitution is the highest law of the land. It is 'the basic and paramount law to which x x
x all persons, including the highest officials of the land, must defer. No act shall be valid,
however noble its intentions, if it conflicts with the Constitution.'" in Bengzon v. Drilon, the
Court held that, "the three branches of government must discharge their respective functions
within the limits of. authority conferred by the Constitution." In Mutuc v. Commission on
Elections, the Court held that, "The three departments of government in the discharge of
the functions with which it is [sic] entrusted have no choice but to yield obedience to It is with these thoughts that this Opinion has been written: I hope to consider all the interests
[the Constitution's] commands. Whatever limits it imposes must be observed." involved and thereby achieve a result that balances the immediate with the long view of the
(Emphases supplied, citations omitted.)cralawlawlibrary concerns besetting the nation.

I am mindful, of course, that the required actions that would actively serve our national
A final word. While it is true that the Philippines cannot stand alone and will need friends
interests depend, to a large extent, on the political departments of government - the
within and beyond this region of the world, still we cannot offend our Constitution and bargain
Executive and, to some extent, the Legislature.2 The Judiciary has only one assigned role - to
away our sovereignty.
ensure that the Constitution is followed and, in this manner, ensure that the Filipino people's
larger interests, as expressed in the Constitution, are protected.3Small though this
Accordingly, I vote to grant the consolidated petitions.
contribution may be, let those of us from the Judiciary do our part and be counted.

I. THE CASE
DISSENTING OPINION

BRION, J.: I.A. The Petitions

The challenges to the EDCA come from several petitions that uniformly question - based on
Before this Court is the constitutionality of the Enhanced Defense Cooperation Agreement
Article XVIII, Section 25 of the 1987 Constitution - the use of an executive agreement as
(EDCA), an executive agreement with the United States of America (U.S.) that the Executive
the medium for the agreement with the U.S. The petitioners posit that the EDCA involves
Department entered into and ratified on June 6, 2014.1
foreign military bases, troops, and facilities whose entry into the country should be covered
by a treaty concurred in by the Senate.
This case is not an easy one to resolve for many reasons - the stakes involved in light of
contemporary history, the limited reach of judicial inquiry, the limits of the Court's own legal
They question substantive EDCA provisions as well, particularly the grant of
competence in fully acting on petitions before it, and the plain and clear terms of our
Constitution. While the petitions, the comments, and the ponencia all extensively dwell on telecommunication and tax privileges to the U.S. armed forces and its personnel; 4 the
constitutional ban against the presence and storage of nuclear weapons within the
constitutional, statutory, and international law, the constitutional challenge cannot be resolved
based solely on our consideration of the Constitution nor through the prism of Philippine Philippines;5 the violation of the constitutional mandate to protect the environment;6 the
national interest considerations, both expressed and those left unspoken in these cases. In deprivation by the EDCA of the exercise by the Supreme Court of its power of judicial
review;7 the violation of the constitutional policy on the preferential use of Filipino labor and
our globalized world where Philippine interests have long been intersecting with those of
materials;8 the violation of the constitutional command to pursue an independent foreign
others in the world, the country's externalities - the international and regional situations and
policy;9 the violation of the constitutional provision on the autonomy of local government
conditions - must as well be considered as operating background from where the Philippines
units10 and of National Building Code;11 and, last but not the least, they question the EDCA
must determine where its national interests lie.
for being a one-sided agreement in favor of the Americans.12
From the practical point of view of these externalities and the violation of Philippine territorial
I.B. The Respondents' Positions
sovereignty that some of us have expressed, a quick decision may immediately suggest itself
- let us do away with all stops and do what we must to protect our sovereignty and
The respondents, through the Office of the Solicitor General (OSG), respond by questioning
national integrity.
the petitioners on the threshold issues of justiciability, prematurity and standing, and by
What renders this kind of resolution difficult to undertake is the violation of our own invoking the application of the political question doctrine.13
Constitution - the express manifestation of the collective will of the Filipino people - that may
The OSG claims as well that the EDCA is properly embodied in an executive agreement as it
transpire if we simply embrace the proffered easy solutions. Our history tells us that we
is an exercise of the President's power and duty to serve and protect the people, and of his
cannot simply turn a blind eye to our Constitution without compromising the very same
commander-in-chief powers;14 that the practical considerations of the case requires a
interests that we as a nation want to protect through a decision that looks only at the
immediate practical view. To lightly regard our Constitution now as we did in the past, is to deferential review of executive decisions over national security; 15 that the EDCA is merely in
implementation of two previous treaties - the Mutual Defense Treaty of 1951 (1951 MDT) and
open the way to future weightier transgressions that may ultimately be at the expense of the
the Visiting Forces Agreement of 1998 (1998 VFA);16 that the President may choose the form
Filipino people.
of the agreement, provided that the agreement dealing with foreign military bases, troops, or
facilities is not the principal agreement that first allowed their entry or presence in the  the modern equivalent of the foreign military bases whose term expired
Philippines. in 1991 and which Article XVIII, Section 25 of the Constitution directly
addresses;
I.C. The Ponencia
 foreign troops under arrangements outside of the contemplation of the
The ponencia exhaustively discusses many aspects of the challenges in its support of the visiting forces that the 1998 VFA allows; and
OSG positions. It holds that the President is the chief implementor of the law and has the duty
to defend the State, and for these purposes, he may use these powers in the conduct of  military facilities that, under modern military strategy, likewise can be
foreign relations;17 even if these powers are not expressly granted by the law in this regard, brought in only through a treaty.
he is justified by necessity and is limited only by the law since he must take the necessary
and proper steps to carry the law into execution.
As the ponencia does, I shall discuss the background facts and the threshold issues that will
The ponencia further asserts that the President may enter into an executive agreement on
enable the Court and the reading public to fully appreciate the constitutional issues before us,
foreign military bases, troops, or facilities, if;
as well as my reasons for the conclusion that the EDCA, as an executive agreement, is
constitutionally deficient.
(a) it is not the instrument that allows the presence of foreign military bases, troops, or
facilities; or
I purposely confine myself to the term "constitutionally deficient" (instead of saying
"unconstitutional") in light of my view that the procedural deficiency that plagues the
(b) it merely aims to implement an existing law or treaty.18
EDCA as an executive agreement is remediable and can still be addressed. Also on
purpose, I refrain from commenting on the substantive objections on the contents of the
It adds that the 1951 MDT is not an obsolete treaty; 19 that the 1998 VFA has already allowed
EDCA for the reasons explained below.
the entry of U.S. troops and civilian personnel and is the treaty being implemented by the
EDCA;20 that the President may generally enter into executive agreements subject to the
II. THE THRESHOLD ISSUES
limitations defined by the Constitution, in furtherance of a treaty already concurred in by the
Senate;21 that the President can choose to agree to the EDCA either by way of an executive
The petitioners bring their challenges before this Court on the basis of their standing as
agreement or by treaty.22 While it compares the EDCA with the 1951 MDT and the 1998 VFA,
citizens, taxpayers, and former legislators. The respondents, on the other hand, question the
it claims at the same time it merely implements these treaties.23
justiciability of the issues raised and invoke as well the political question doctrine to secure
the prompt dismissal of the petitions. I shall deal with these preliminary issues below, singly
On the exercise of its power of judicial review, the ponencia posits that the Court does not
and in relation with one another, in light of the commonality that these threshold issues carry.
look into whether an international agreement should be in the form of a treaty or an executive
agreement, save in the cases in which the Constitution or a statute requires otherwise;24 that
The petitioners posit that the use of an executive agreement as the medium to carry EDCA
the task of the Court is to determine whether the international agreement is consistent with
into effect, violates Article XVIII, Section 25 of the 1987 Constitution and is an issue of
applicable limitations;25 and that executive agreements may cover the matter of foreign
transcendental importance that they, as citizens, can raise before the Supreme Court. 27
military forces if these merely involve adjustments of details.26
(Significantly, the incumbent Senators are not direct participants in this case and only
belatedly reflected their institutional sentiments through a Resolution.)28 The petitioners in
I.D. The Dissent
G.R. No. 212444 also claim that the constitutionality of the EDCA involves the assertion and
protection of a public right, in which they have a personal interest as affected members of the
I dissent, as I disagree that an executive agreement is the proper medium for the
general public.29
matters covered by the EDCA. The EDCA is an agreement that, on deeper examination,
violates the letter and spirit of Article XVIII, Section 25 and Article VII, Section 21, both of the
The petitioners likewise claim that the EDCA requires the disbursement of public funds and
Constitution.
the waiver of the payment of taxes, fees and rentals; thus, the petitioners have the standing
to sue as taxpayers.30
The EDCA should be in the form of a treaty as it brings back to the Philippines
They lastly claim that the exchange of notes between the Philippines' Department of National
Defense Secretary Voltaire Gazmin and U.S. Ambassador Philip Goldberg 31 - the final step
towards the implementation of the EDCA - rendered the presented issues ripe for
adjudication.
The respondents, in response, assert that the petitioners lack standing, 32 and that the
petitions raise political questions that are outside the Court's jurisdiction to resolve. 33
They also argue that the issues the petitions raise are premature.34 The EDCA requires the
creation of separate agreements to carry out separate activities such as joint exercises, the
prepositioning of materiel, or construction activities. At present, these separate agreements
do not exist. Thus, the respondents state that the petitioners are only speculating that the
agreements to be forged under the EDCA would violate our laws. These speculations cannot
be the basis for a constitutional challenge.
II.A. Locus Standi
The ponencia holds that the petitioners do not have the requisite standing to question the
constitutionality of the EDCA, but chooses to give due course to the petitions because of the
transcendental importance of the issues these petitions raise.35 In effect, the ponencia takes
a liberal approach in appreciating the threshold issue of locus standi.
I agree with the ponencia's ultimate conclusions on the threshold issues raised. I agree as
well that a justiciable issue exists that the Court can pass upon, although on both counts I
differ from the ponencia's line of reasoning. Let me point out at the outset, too, that judicial
review is only an exercise of the wider judicial power that Article VIII, Section 1 of the
Constitution grants and defines. One should not be confused with the other.
Judicial review is part of the exercise of judicial power under Article VIII, Section 1 of the
Constitution, particularly when it is exercised under the judiciary's expanded power (i.e., when
courts pass upon the actions of other agencies of government for the grave abuse of
discretion they committed), or when the Supreme Court reviews, on appeal or certiorari, the
constitutionality or validity of any law or other governmental instruments under Section 5(2)(a)
and (b) of Article VIII of the Constitution.
A basic requirement is the existence of an actual case or controversy that, viewed correctly,
is a limit on the exercise of judicial power or the more specific power of judicial review. 36
Whether such case or controversy exists depends on the existence of a legal right and the
violation of this right, giving rise to a dispute between or among adverse parties.37 Under the
expanded power of judicial review, the actual case or controversy arises when an official or
agency of government is alleged to have committed grave abuse of discretion in the exercise
of its functions.38
Locus standi is a requirement for the exercise of judicial review39 and is in fact an aspect of
the actual case or controversy requirement viewed from the prism of the complaining party
whose right has been violated.40
When a violation of a private right is asserted, the locus standi requirement is sharp and
narrow because the claim of violation accrues only to the complainant or the petitioner whose
right is alleged to have been violated.41
On the other hand, when a violation of a public right is asserted - i.e., a right that belongs to
the public in general and whose violation ultimately affects every member of the public - the
locus standi requirement cannot be sharp or narrow; it must correspond in width to the right
violated. Thus, the standing of even a plain citizen sufficiently able to bring and support a suit,
should be recognized as he or she can then be deemed to be acting in representation of the
general public.42
Transcendental importance is a concept (a much abused one) that has been applied in
considering the requirements for the exercise of judicial power.43 To be sure, it may find
application when a public right is involved because a right that belongs to the general public
cannot but be important.44 Whether the importance rises to the level of being transcendental
is a subjective element that depends on the user's appreciation of the descriptive word
"transcendental" or on his or her calibration of the disputed issues' level of importance.
In either case, the use of transcendental importance as a justification is replete with risks of
abuse as subjective evaluation is involved.45 To be sure, this level of importance can be used
as justification in considering locus standi with liberality,46 but it can never be an excuse to
find an actual controversy when there is none. To hold otherwise is to give the courts an
unlimited opportunity for the exercise of judicial power - a situation that is outside the
Constitution's intent in the grant of judicial power.
In the present cases, a violation of the Constitution, no less, is alleged by the petitioners
through the commission of grave abuse of discretion. The violation potentially affects our
national sovereignty, security, and defense, and the integrity of the Constitution - concerns
that touch on the lives of the citizens as well as on the integrity and survival of the nation. In
particular, they involve the nation's capability for self-defense; the potential hazards the
nation may face because of our officials' decisions on defense and national security matters;
and our sovereignty as a nation as well as the integrity of the Constitution that all citizens,
including the highest officials, must protect.
In these lights, I believe that the issues involved in the present case are so important that a
plain citizen sufficiently knowledgeable of the outstanding issues, should be allowed to sue.
The petitioners - some of whom are recognized legal luminaries or are noted for their activism
on constitutional matters - should thus be recognized as parties with proper standing to file
and pursue their petitions before this Court.
II.B. Ripeness of the Issues Raised for Adjudication
I agree with the ponencia's conclusion that the cases before this Court, to the extent they are
anchored on the need for Senate concurrence, are ripe for adjudication. My own reasons for
this conclusion are outlined below.
Like locus standi, ripeness for adjudication is an aspect of the actual case or controversy
requirement in the exercise of judicial power.47 The two concepts differ because ripeness is
considered from the prism, not of the party whose right has been violated, but from the prism
of the actual violation itself.
Of the two basic components of actual case or controversy, namely, the existence of a right
and the violation of that right, ripeness essentially addresses the latter component.48 That a
right exists is not sufficient to support the existence of an actual case or controversy; the right
must be alleged to have been violated to give rise to a justiciable dispute. In other words, it is
the fact of violation that renders a case ripe,49 assuming of course the undisputed existence
of the right violated.
In the present cases, Article VIII, Section 25 of the Constitution lays down in no uncertain
terms the conditions under which foreign military bases, troops, and facilities may be allowed
into the country: there should at least be the concurrence of the Senate.
Under these terms, the refusal to allow entry of foreign military bases, troops, and facilities
into the country without the required Senate concurrence is a prerogative that the people of
this country adopted for themselves under their Constitution: they want participation in this
decision, however indirect this participation might be. This prerogative is exercised through
the Senate; thus, a violation of this constitutional prerogative is not only a transgression
against the Senate but one against the people who the Senate represents.
The violation in this case occurred when the President ratified the EDCA as an executive
agreement and certified to the other contracting party (the U.S.) that all the internal processes
have been complied with, leading the latter to believe that the agreement is already valid and
enforceable. Upon such violation, the dispute between the President and the Filipino people
ripened.
The same conclusion obtains even under the respondents' argument that the constitutionality
of the EDCA is not yet ripe for adjudication, since it requires the creation of separate
agreements to carry out separate activities such as joint exercises, the prepositioning of
materiel, or construction activities. To the respondents, the petitioners are merely speculating
on their claim of unconstitutionality since these separate agreements do not yet exist.
Indeed, issues relating to agreements yet to be made are not, and cannot be, ripe for
adjudication for the obvious reason that they do not yet exist. The question of the EDCA's
constitutionality, however, does not depend solely on the separate agreements that will
implement it. The fact that an executive agreement had been entered into, not a treaty as
required by Article XVIII, Section 25 of the Constitution, rendered the agreement's
constitutional status questionable. Thus, when the exchange of notes that signaled the
implementation of the EDCA took place, the issue of its compliance with the constitutional
requirements became ripe for judicial intervention under our expanded jurisdiction.
II.C. The Political Question Doctrine
Another threshold issue that this Court must settle at the outset, relates to the political
question doctrine that, as a rule, bars any judicial inquiry on any matter that the Constitution
and the laws have left to the discretion of a coordinate branch of government for action or
determination.50
The respondents raise the political question issue as part of their defense, arguing that the
issues the petitioners raise are policy matters that lie outside the Court's competence or are
matters where the Court should defer to the Executive. 51
The political question bar essentially rests on the separation of powers doctrine that underlies
the Constitution.52 The courts cannot interfere with questions that involve policy determination
exclusively assigned to the political departments of the government. 53 The American case of
Baker v. Carr54 best describes the standards that must be observed in determining whether
an issue involves a political question, as follows:chanRoblesvirtualLawlibrary
Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolving it; or the impossibility
of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.55cralawlawlibrary
From among these tests, the presence or absence of constitutional standards is the most
relevant under the circumstances of the present consolidated cases.
After analyzing the issues raised, I find the respondents' position partly erroneous and partly
premature for a political question doctrine ruling.
This conclusion proceeds from my recognition that a distinction should be drawn in
recognizing the constitutional issues before us, some of which are procedural in character
while others are substantive ones that require the application of different constitutional
provisions.
The petitioners primarily question the constitutional validity of the EDCA for violation of Article
XVIII, Section 25 of the 1987 Constitution. They challenge, as well, substantive provisions of
the EDCA, among them, those relating to the grant of telecommunication privileges and tax
exemptions to American visiting forces, and the EDCA provisions that would allegedly allow
the entry of nuclear weapons into the country.
That the EDCA is an agreement that requires concurrence by the Senate before it can be
considered valid and enforceable, is an issue that is essentially procedural as it requires that
steps be taken before an international agreement can be considered fully valid and
enforceable. It is an issue extrinsic to the terms of the EDCA and is properly a threshold
issue that must be resolved before the substantive challenges to the EDCA's validity can be
addressed.

Aside from being procedural, the issue relates as well to the standard set by the Constitution
that delineates when an international agreement should be a treaty subject to Senate
concurrence. The presence of this standard renders the determination of the medium to be
used in forging an international agreement - whether as a treaty or as an executive
agreement -an issue within the competence and authority of the courts to resolve in their role
as guardians of the Constitution.56
Thus, the main issue the petitioners pose - the constitutional status of the EDCA as an
executive agreement in light of the mandate of Article XVIII, Section 25 of the Constitution - is
not a political question outside the judiciary's competence and authority to resolve. The
respondents' argument on this point is therefore erroneous.
If indeed a referral to the Senate is required and no referral has been made, then the EDCA
is constitutionally deficient so that its terms cannot be enforced. This finding renders
further proceedings on the merits of the substantive issues raised, pointless and
unwarranted. There is likewise no point in determining whether the substantive issues raised
call for the application of the political question doctrine.57
On the other hand, the examination of the EDCA's substantive contents may be ripe and
proper for resolution if indeed the EDCA can properly be the subject of an executive
agreement. It is at that point when the respondents may claim that the substantive contents of
the EDCA involve policy matters that are solely for the President to determine and that the
courts may not inquire into under the separation of powers principle. 58 It is only at that point
when the application of the political question doctrine is called for.
In these lights (particularly, my position on the merits of the procedural issue raised), I find a
ruling on the application of the political question doctrine to the substantive issues raised
premature and unripe for adjudication; any ruling or discussion I may make may only confuse
the issues when a proper petition on the constitutionality of the substantive contents of EDCA
is filed.
III. THE FACTS
III.A. Historical, International and Regional Contexts
III.A(1) The Early Years of Philippines-U.S. Relationship
Active Philippine-American relations started in 1898, more than a century ago, when
Commodore George Dewey and his armada of warships defeated the Spanish navy in the
Philippines in the Battle of Manila Bay.59 The sea battle was complemented by land assaults
by Philippine forces who were then in open rebellion against Spain under the leadership of
General Emilio Aguinaldo.60
The complementary effort started a relationship that, from the Philippine end, was
characterized by hope of collaboration and assistance in the then colony's quest for
independence from Spain.61 But the fulfillment of this hope did not come to pass and was in
fact shattered when America, with its own geopolitical interests in mind, decided to fight the
Philippine forces and to keep the Philippines for itself as a colony. The American objective
was fully realized under the Treaty of Paris between Spain and the U.S., when the Philippines
was handed by Spain to the U.S. as a colony. 62
The result, of course, was inevitable as the Philippine forces were not then fighting for a
change of masters but for independence. The Philippine forces fought the Americans in the
Philippine-American war, and lost.63
Thus, a new colonizer took Spain's place. Unlike the Spanish colonial rule, however, one
redeeming feature of the American colonial rule was the introduction of the concepts of
democracy and governance.
As a colony, the Philippines, played a distinct role as the American outpost in the Far East as
the American geopolitical interests slowly grew from the First World War years. By the end of
the Second World War, the U.S.' international primacy was confirmed as the leader of the
victor-nations. This international leadership role became sole leadership when the Soviet
Union collapsed in the late 1980s. Thus, the U.S. now stands as the only global superpower
whose military, economic, cultural, and technological reach and influence extend over all
continents.64
III.A(2) The Post-W. W. II Years
It was soon after Philippine independence, as the U.S. superpower status was rising, that the
U.S. and the Philippines forged the Military Bases Agreement of 1947 (1947 MBA) and the
1951 MDT. The 1947 MBA was the agreement specific to the U.S. bases, troops, and
facilities in the Philippines,65 while the 1951 MDT was the overarching document, entered into
and ratified by the two countries as a treaty, to define the Philippine-American defense
relationship in case of an armed attack by a third country on either of them. 66 As its title
directly suggests, it is a defense agreement.
The solidity of the R.P.-U.S. relationship that started in the colonizer-colony mode, shifted to
defense/military alliance (through the MBA, MDT, and their supplementary agreements) after
Philippine independence, and began to progressively loosen as the Philippines tracked its
own independent path as a nation. Through various agreements,67 the American hold and the
length of stay of American military bases in the Philippines progressively shrunk.
The death knell for the U.S. military bases started sounding when a new Philippine
Constitution was ratified in 1987. The new Constitution provides that after the expiration of
the agreement on military bases, no foreign military bases, troops or facilities shall be
allowed except through a treaty concurred in by the Senate or with the direct consent
of the Filipino people if Congress would require this mode of approval. 68
The actual end of the military bases came in 1991 when the 1947 MBA expired with no
replacement formal arrangement in place except the 1951 MDT.69 For some years, R.P.-U.S.
relationship on defense/military matters practically froze. The thaw only came when the 1998
VFA was negotiated and agreed upon as a treaty that the Philippine Senate concurred in.
 III.A(3) The U.S. 's "Pivot to Asia" Strategy
During the latter part of the first term of the Obama Administration, the U.S. announced a shift
in its global strategy in favor of a military and diplomatic "pivot" or "rebalance" toward Asia. 70
The strategy involved a shift of the U.S.'s diplomatic, economic, and defense resources to
Asia, made urgent by "the rise of Chinese regional power and influence, and China's
apparent inclination to exercise its burgeoning military power in territorial disputes with its
neighbors."71 These disputes affected sea lanes that are vital to the U.S. and its allies; hence,
the U.S. was particularly concerned with their peaceful resolution. 72 Critical to the strategy is
the projection of American power and influence worldwide.
The key to the new strategy in the military-political area is "presence: forward deployment of
U.S. military forces; a significant tempo of regional diplomatic activity (including helping Asian
countries resolve disputes that they cannot resolve themselves); and promoting an agenda of
political reform where it is appropriate"73 This meant, among others, the strengthening of
American military alliance with Asian countries, including the Philippines.
The "pivot" has a direct relevance to Philippine concerns since it was prompted, among
others, by "China's growing military capabilities and its increasing assertiveness of claims to
disputed maritime territory, with implications for freedom of navigation and the United States'
ability to project power in the region."74 The opening of new areas for military cooperation with
the Philippines is among the announced features of the "pivot."75
III.A(4)The EDCA
It was soon after the launch of the "pivot" strategy that the initiatives for the EDCA
came. The EDCA, of course, did not introduce troops into the country for the first time, as the
1998 VFA already ushered in the presence of U.S. military troops on a rotational but
temporary basis.
What the EDCA brought with it was the concept of "agreed locations" to which the U.S.
has "unimpeded access" for the refueling of aircraft; bunkering of ships; pre-
positioning and storage of equipment, supplies and materials; the introduction of
military contractors into the agreed locations; and the stationing and deployment point
for troops.76
In these lights, the confirmed and valid adoption of the EDCA would make the Philippines an
active ally participating either as a forward operating site (FOS,) or Cooperative Security
Location (CSL) in the American "pivot" strategy or, in blunter terms, in the projection and
protection of American worldwide power. FOS and CSL shall be explained under the proper
topic below.
All these facts are recited to place our reading of the EDCA in proper context - historically,
geopolitically, and with a proper appreciation of the interests involved, both for the Philippines
and the U.S.
The U.S. is in Asia because of the geopolitical interests and the world dominance that it
seeks to maintain and preserve.77 Asia is one region that has been in a flux because of the
sense of nationalism that had lain dormant among its peoples, the economic progress that
many of its countries are experiencing as the economic winds shift to the East, and the
emergence of China that — at the very least — is now gradually being recognized as a
regional power with the potential for superpower status.78 The Philippines itself is
encountering territorial problems with China because of the latter's claims in the West
Philippine Sea; the Philippines has chosen the path of peace in the dispute through
international arbitration.79
EDCA and Article XVIII, Section 25 of the Constitution, in their larger regional
signification, mean that the Philippines would thereafter, not only be bound as an
American ally under the 1951 MDT, but as an active participant as "pivot" and
projection points in the grand American strategy in Asia.
How the Philippines will react to all these developments is largely for the Executive and the
people (through the Legislature) to determine. In making its decisions, they must - at the very
least - show one and all that our country is entitled to respect as an independent and
sovereign nation. This respect must come primarily from within the Philipines and the
Filipinos themselves, from the nation's own sense of self-respect: in negative terms,
the Filipino nation cannot attain self-respect unless it shows its respect for its own
Constitution - the only instrument that binds the whole nation.
IV. THE PRESIDENT'S ROLE IN
GOVERNANCE AND ITS LIMITS
This discussion is made necessary by the ponencia's patent misconceptions regarding the
role the President plays in governance as chief executive and implementor of policies and the
laws.
IV.A. The Ponencia and My Objections
In upholding the constitutionality of the EDCA, the ponencia holds that the President's power
and duty to ensure the faithful execution of our laws include the defense of our country as the
commander-in-chief of the country's armed forces.80 It contends that these powers, combined
with the President's capacity as the country's sole organ in foreign affairs, empower the
President to enter into international agreements with other countries and give him the
discretion to determine whether an international agreement should be in the form of a treaty
or executive agreement.
The patent misconception begins when the ponencia asserts that the President cannot
function with crippled hands: "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 he must
'take necessary and proper steps to carry into execution the law. "'81 It further adds that it is
the President's prerogative to do whatever is legal and necessary for the Philippines' defense
interests.82
While acknowledging the Constitution's command that the entry of foreign military bases,
troops, and facilities must be in a treaty, the ponencia asserts that the EDCA should be
examined in relation with this requirement alone, as the President's wide authority in external
affairs should be subject only to the limited amount of checks and restrictions under the
Constitution.83
It is within this framework that the ponencia concludes that the requirement under Article
XVIII, Section 25 of the Constitution is limited to the initial entry of foreign military bases,
troops, and facilities. Thus, once a treaty has allowed the entry of foreign military bases,
troops, and facilities into the Philippines, the ponencia posits that the President may enter into
subsequent executive agreements that involve "detail adjustments" of existing treaties. 84
I cannot fully agree with the ponencia's approach and with its conclusions.
First and foremost, the ponencia overlooks that as Chief Executive, the President's role is not
simply to execute the laws. This important function is preceded by the President's foremost
duty to preserve and defend the Constitution, the highest law of the land. The President's
oath, quoted by the ponencia itself, in fact, states:chanRoblesvirtualLawlibrary
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.85 [Emphasis supplied]cralawlawlibrary
The supremacy of the Constitution means that in the performance of his duties, the President
should always be guided and kept in check by the safeguards that were crafted by the
framers of the Constitution and ratified by the people. The Constitution prescribes the
limitations to the otherwise awesome powers of the Executive who wields the power of the
sword and shares in the power of the purse.
I also do not agree that constitutional limitations, such as the need for Senate concurrence in
treaties, can be disregarded if they unduly "tie the hands" of the President. 86 These limitations
are democratic safeguards that place the responsibility over national policy beyond the hands
of a single official. Their existence is the hallmark of a strong and healthy democracy. In
treaty-making, this is how the people participate - through their duly-elected Senate - or
directly when the Congress so requires. When the Constitution so dictates, the President
must act through the medium of a treaty and is left with no discretion on the matter. This is
the situation under Article XVIII, Section 25 of the Constitution, whose application is currently
in dispute.
Let it be noted that noble objectives do not authorize the President to bypass constitutional
safeguards and limits to his powers. To emphasize this point, we only need to refer to Article
VI, Section 23(2) of the Constitution:chanRoblesvirtualLawlibrary
(2) In times of war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such power shall cease upon the next
adjournment thereof. [Emphasis supplied]cralawlawlibrary
Thus, the President cannot, by himself, usurp the prerogatives of a coequal branch to carry
out what he believes is necessary for the country's defense interests. His position as the
Commander-in-Chief of the Armed Forces of the Philippines (AFP) does not give him the sole
discretion to increase our military's defensive capabilities; his role as commander-in-chief
only gives him control of the military's chain of command. It grants him the power to call out
the armed forces to prevent/suppress lawless violence, invasion, insurrection, or rebellion. 87
The modernization of the military, in particular, is a joint responsibility of the political branches
of the State because the Congress is responsible for crafting relevant laws 88 and for
allocating funds for the AFP through the General Appropriations Act.89 The increase or
decrease of funds and the extent of defense initiatives to be undertaken are national policy
matters that the President cannot undertake alone.
IV.B. The President's Foreign Relations Power should be Interpreted in the Context of
the Separation of Powers Doctrine
We cannot also interpret a provision in the Constitution in isolation and separately from the
rest of the Constitution. Similarly, we cannot determine whether the Executive's acts had
been committed with grave abuse of discretion without considering his authority in the context
of the powers of the other branches of government.
While the President's role as the country's lead official in the conduct of foreign affairs is
beyond question, his authority is not without limit. When examined within the larger context of
how our tripartite system of government works (where each branch of government is supreme
within its sphere but coordinate with the others), we can see that the conduct of foreign
affairs, particularly when it comes to international agreements, is a shared function among all
three branches of government.
The President is undeniably the chief architect of foreign policy and is the country's
representative in international affairs.90 He is vested with the authority to preside over the
nation's foreign relations which involve, among others, dealing with foreign states and
governments, extending or withholding recognition, maintaining diplomatic relations, and
entering into treaties.91 In the realm of treaty-making, the President has the sole authority to
negotiate with other States.92
IV.B(l) Separation of Powers and the Treaty-Making Process
This wide grant of authority, however, does not give him the license to conduct foreign affairs
to the point of disregarding or bypassing the separation of powers that underlies our
established constitutional system.
Thus, while the President has the sole authority to negotiate and enter into treaties, Article
VII, Section 21 of the 1987 Constitution at the same time provides the limitation that two-
thirds of the members of the Senate should give their concurrence for the treaty to be valid
and effective.

Notably, this limitation is a not a new rule; the legislative branch of government has been
participating in the treaty-making process by giving (or withholding) its consent to treaties
since the 1935 Constitution. Section 10 (7), Article VII of the 1935 Constitution
provides:chanRoblesvirtualLawlibrary
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 x x x.
This tradition of legislative participation continued despite our presidential-parliamentary form
of government under the 1973 Constitution, that is markedly different from the tripartite form
of government that traditionally prevailed in the country. Section 14(1) Article VIII of the 1973
Constitution stated:chanRoblesvirtualLawlibrary
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.
That we have consistently included the participation of the legislative branch in the treaty-
making process is not without an important reason: it provides a check on the Executive in
the field of foreign relations. By requiring the concurrence of the Legislature in the treaties
entered into by the President, the Constitution ensures a healthy system of checks and
balances necessary in the nation's pursuit of political maturity and growth.
Under this system, the functions of government are divided among three branches of
government, each one supreme within its own sphere: the executive administers and
enforces laws; the legislature formulates and enacts laws; and the judiciary settles cases
arising out of the enforcement of these laws93 The requirement of Senate concurrence to the
executive's treaty-making powers is a check on the prerogatiye of the Executive, in the same
manner that the Executive's veto on laws passed by Congress 94 is a check on the latter's
legislative powers.
Even the executive agreements that the President enters into without Senate concurrence
has legislative participation - they are implementations of existing laws Congress has passed
or of treaties that the Senate had assented to.95 The President's authority to negotiate and
ratify these executive agreements springs from his power to ensure that these laws and
treaties are executed.96
The judicial branch of government's participation in international agreements is largely
passive, and is only triggered when cases reach the courts. The courts, in the exercise of
their judicial power, have the duty to ensure that the Executive and Legislature stay within
their spheres of competence;97 they ensure as well that constitutional standards and
limitations set by the Constitution for the Executive and the Congress to follow are not
violated.
Article VIII, Section 5 of the Constitution is even more explicit, as it gives the Supreme Court
the jurisdiction "to review by appeal or certiorari all cases in which the constitutionality or
validity of any treaty, international or executive agreement, law x x x is in question."
Thus, entry into international agreements is a shared function among the three branches of
government. In this light and in the context that the President's actions should be viewed
under our tripartite system of government, I cannot agree with the ponencia's assertion
that the case should be examined solely and strictly through the constitutional
limitation found in Article XVIII, Section 25 of the Constitution.
IV.B(2) Standards in Examining the President's Treaty-Making Powers
Because the Executive's foreign relations power operates within the larger constitutional
framework of separation of powers, I find the examination of the President's actions through
this larger framework to be the better approach in the present cases. This analytical
framework, incidentally, is not the result of my original and independent thought; it was
devised by U.S. Supreme Court Associate Justice Robert Jackson in his Concurring Opinion
in Youngstown Sheet & Tube Co. v. Sawyer.98
Justice Jackson's framework for evaluating executive action categorizes the President's
actions into three: first, when the President acts with authority from the Congress, his
authority is at its maximum, as it includes all the powers he possesses in his own right and
everything that Congress can delegate.99
Second, "when the President acts in the absence of either a congressional grant or
denial of authority, he can only rely on his own independent powers, but there is a [twilight
zone where] he and Congress may have concurrent authority, or where its distribution is
uncertain."100 In this situation, presidential authority can derive support from "congressional
inertia, indifference or quiescence."101
Third, "when the President takes measures incompatible with the expressed or implied will of
Congress, his power is at its lowest ebb,"102 and the Court can sustain his actions "only by
disabling the Congress from acting upon the subject."103
This framework has been recently adopted by the U.S. Supreme Court in Medellin v.
Texas,104 a case involving the President's foreign affairs powers and one that can be directly
instructive in deciding the present case.
In examining the validity of an executive act, the Court takes into consideration the varying
degrees of authority that the President possesses. Acts of the President with the
authorization of Congress should have the "widest latitude of judicial interpretation" 105 and
should be "supported by the strongest of presumptions."106 For the judiciary to overrule the
executive action, it must decide that the government resell lacks me power. In contrast,
executive acts that are without congressional imprimatur would have to be very
carefully examined.
IV.B(3) The Senate Objection to EDCA as an Executive Agreement
In the present cases, the President's act of treating the EDCA as an executive
agreement has been disputed by the Senate, although the Senate is not an active party in
the present cases.
On November 10, 2015, the Senate sent the Supreme Court a copy of Senate Resolution No.
1414107 expressing its sentiment that the EDCA should have been entered into in the form of
a treaty. Furthermore, and as will be explained in the succeeding portions of this Dissenting
Opinion, the EDCA's provisions are not all within the terms of the two treaties properly ratified
by the Senate - the 1951 MDT and 1998 VFA; hence, the President could not have drawn his
authority from these agreements.
Thus, contrary to the ponencia's assertion that the President's act of treating the EDCA as an
executive agreement should be subject to the "least amount of checks and restrictions under
the Constitution,"108 this presidential action should actually be very carefully examined, in light
of the Senate's own expressed sentiments on the matter.
The mandatory character of the executive-legislative power sharing should be particularly
true with respect to the EDCA, as its adoption signifies Philippine participation in
America's pivot strategy by making our country one of the (ipivot" or projection points
that would enforce America's military strategy. In taking this kind of step, the Senate must
simply be there to give its consent, as the Constitution envisions in situations involving the
entry of foreign military bases, troops, and facilities into the country.
In these lights, I propose that we examine the President's act of treating the EDCA not simply
by the standard of whether it complies with the limitation under Article XVIII, Section 25 of the
Constitution, but in the context of how our government functions, and of other relevant
provisions in the Constitution.
IV.C. Constitutional Standards in Allowing the Entry of Foreign Military Bases, Troops,
and Facilities in the Philippines
IV.C(l) Article VII, Section 21 of the Constitution and Treaty-Making
In general, the President's foreign affairs power must be exercised in compliance with Article
VII, Section 21 of the Constitution, which requires the submission of treaties the President
ratified, to the Senate for its concurrence. The Senate may either concur in, or withhold
consent to, the submitted treaties.
Significantly, not all the international agreements that the President enters into are required to
be sent to the Senate for concurrence. Jurisprudence recognizes that the President may
enter into executive agreements with other countries,109 and these agreements - under the
proper conditions - do not require Senate concurrence to be valid and enforceable in the
Philippines.110
IV.C(2) Treaties and Executive Agreements under Article VII Section 21
Where lies the difference, it may well be asked, since both a treaty and an executive
agreement fall under the general title of international agreement?
An executive agreement emanates from the President's duty to execute the laws
faithfully.111 They trace their validity from existing laws or from treaties that have been
authorized by the legislative branch of government.112 In short, they implement, laws and
treaties.
In contrast, treaties are international agreements that do not originate solely from the
President's duty as the executor of the country's laws, but from the shared function that the
Constitution mandates between the President and the Senate. 113 They therefore need
concurrence from the Senate after presidential ratification, in order to fulfill the constitutional
shared function requirement.114
Jurisprudential definitions of treaties and executive agreements are conceptually drawn from
these distinctions although in Bayan Muna v. Romulo,115 we simply differentiated treaties
from executive agreements in this wise:chanRoblesvirtualLawlibrary
Article 2 of the Vienna Convention on the Law of Treaties: 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. 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. 116]
[Emphases supplied]cralawlawlibrary
Bayan Muna likewise did not distinguish between treaties and executive agreements in terms
of their binding effects on the contracting States concerned.117 But neither one can
contravene the Constitution.
This ambiguity perhaps might have been the root of the general statement that the Executive
generally has the discretion to determine whether an international obligation should be in the
form of a treaty or an executive agreement. This general statement, however, is far from
complete and should be qualified because the Executive's exercise of discretion is affected
and should be dictated by the demands of the enforceabiHty of the obligations the
international agreement creates in the domestic sphere.
Between a treaty and an executive agreement, a treaty exists on a higher plane as it carries
the authority of the President and the Senate.118 Treaties have the status, effect, and impact
of statutory law in the Philippines; they can amend or prevail over prior statutory
enactments.119
Executive agreements - which exist at the level of implementing rules and regulations or
administrative orders in the domestic sphere - carry no such effect.120 They cannot
contravene statutory enactments and treaties and would be invalid if they do so. 121
Again, this difference in impact is traceable to the source of their authority; since a treaty has
the approval of both the President and the Senate, it has the same impact as a statute. In
contrast, since an executive agreement springs from the President's power to execute laws, it
cannot amend or violate existing treaties, and must be in accord with and be made pursuant
to existing laws and treaties.122
Accordingly, the terms and objectives of the presidential entry into an international agreement
dictates the form the agreement must take. When an international agreement is made merely
to implement an existing law or treaty, then it can properly take the form of an executive
agreement.123
In contrast, when an international agreement involves the introduction of a new subject
matter or the amendment of existins agreements or laws and has not passed the required
executive and legislative processes, then it should properly be in the form of a treaty. 124
To reiterate, the consequence of the violation of this norm impacts on the enforceability of the
international agreement in the domestic sphere; should an executive agreement amend or
contravene statutory enactments and treaties, then it is void and cannot be enforced in the
Philippines for lack of the proper authority on the part of the issuer.
In judicial terms, the distinctions and their consequences mean that an executive agreement
that creates new obligations or amends existing ones, has been issued with grave
abuse of discretion amounting to a lack of or in excess of jurisdiction, and can be
judicially nullified under the courts' power of judicial review.
IV. C (3) Joint Reading of Article VII, Section 21 and Article XVIII, Section 25
The dynamics that Article VII, Section 21 embody, should be read into Article XVIII, Section
25 of the 1987 Constitution, which specifically covers and applies to the entry of foreign
military bases, troops, or facilities into the country.
It is on the basis of this joint reading that the ponencia's conclusion -that Article XVIII,
Section 25 applies only to the initial entry of foreign military bases, troops, and facilities in the
country - is essentially incorrect.
Article XVIII, Section 25 does not provide for any such limitation in its applicability. Neither is
there, anything in the language of the provision that remotely implies this consequence. What
it simply states is that foreign military bases, troops, and facilities may only be present in
Philippine soil in accordance with a treaty concurred in by the Senate.
When the terms of Article XVIII, Section 25 treaty does not provide for situations or
arrangements subsequent to the initial entry of foreign military bases, troops, or facilities in
the country and the subsequent arrangements are still attributed to the same treaty made
pursuant to Section 25, the combined reading of Article VII, Section 21 and Article XVIII,
Section 25 must now come into play.
This combined reading simply means that after the initial entry of foreign military bases,
troops, or facilities in the Philippines under a duly ratified treaty, subsequent arrangements
relating to foreign military bases, troops or facilities that are claimed to be based on the same
treaty, should be examined based on the treaty-executive agreement distinctions recognized
by jurisprudence under Article VII, Section 21 of the Constitution.
In other words, any subsequent international agreement referring to military bases, troops or
facilities should be examined based on whether it creates a new obligation or
implements an existins one. The determination of this question rests with the Executive but
the treaty-executive agreement distinctions should limit the Executive's discretion when the
new international agreement relates to a new obligation (or a change in an existing obligation)
as the presence of foreign military bases, troops, or facilities in the Philippines should then be
effected through another treaty.
To put it more bluntly, Article XVIII, Section 25 effectively removes the Executive's discretion
in deciding the form of an international agreement because of this provision's explicit directive
to use a treaty as the medium for new obligations created.
In Bayan v. Zamora,125 our conclusion supported this position. We explained that Article
XVIII, Section 25 makes no distinction as to whether the presence of foreign military bases,
troops, or facilities may be transient or permanent.126 By concluding that the permanence of
foreign military bases, troops, or facilities is immaterial to the application of Article XVIII,
Section 25, we effectively acknowledged that subsequent agreements that amend or
introduce new obligations to existing treaties that previously allowed the entry of foreign
military bases, troops or facilities, should be the subject of another treaty as they may enter
the country on varying grounds, lengths or periods of time - all of which can change the
nature of the obligations under existing treaties.
IV.C(4) The Dissent's Analytical Approach
Given these parameters, I propose that we examine the constitutionality of the Executive's
act of entering into the obligations found in the EDCA in the form of an executive agreement
with these two questions:chanRoblesvirtualLawlibrary
(1) Does the EDCA involve the introduction into the Philippines of foreign military
bases, troops, or facilities that call for its examination under Article XVIII, Section 25?
(2) Does the EDCA impose new obligations, or amend or go beyond existing ones,
regarding the presence of foreign military bases, troops, or facilities in the
Philippines?
If the EDCA introduces foreign military bases, troops, or facilities in the Philippines within the
contemplation of Article XVIII, Section 25 of the 1987 Constitution, and if these obligations
are different from those found in our existing treaty obligations with the U.S., then the EDCA
cannot be enforced in the Philippines without the Senate's concurrence. The ponencia is
then incorrect and the Dissent must prevail.
Conversely, if the EDCA merely implements present treaty obligations - particularly those
under the 1951 MDT and the 1998 VFA -then the President was well within his powers in the
execution of our present treaty obligations. The ponencia is correct and the Dissent
therefore fails.
 V. THE APPLICATION OF ARTICLE XVIII,
SECTION 25 TO THE EDCA
V.A. The Article XVIII, Section 25 Dispute
When the subject of an international agreement falls under Article XVIII, Section 25 of the
Constitution, the President - by constitutional command - must enter into a treaty subject to
the concurrence of the Senate and, when Congress so desires, of the people through a
national referendum.
This rule opens the door for Court intervention pursuant to its duty to uphold the Constitution
and its further duty (under its power of judicial review) to pass upon any grave abuse of
discretion committed by any official or agency of government. It is under this constitutionally-
mandated terms that this Court invokes its power to review the constitutionality of the
President's actions in handling the EDCA.
Within this framework, the issue these cases present is clear. The bottom line question is
whether the President gravely abused his discretion in executing the EDCA as an
executive agreement; the alleged existence of grave abuse of discretion constitutes the
actual case or controversy that allows the exercise of judicial power. Whether grave abuse
exists, in turn, depends on the determination of whether the terms of the EDCA
imposed new or amended existing obligations involving foreign military bases, troops,
and facilities in the Philippines.
If the EDCA does, then it should have been in the form of a treaty submitted to the Senate for
its concurrence. In resolving this question, I am guided first, by the text of the Constitution
itself and the meaning of its operative words in both their original and contemporaneous
senses; second, by the spirit that motivated the framing of Article XVIII, Section 25; and
third, by jurisprudence interpreting this provision.
The ponencia lays the premise that the President may enter into an executive agreement on
foreign military bases, troops, or facilities if:chanRoblesvirtualLawlibrary
(a) it is not the instrument that allows the presence of foreign military bases, troops, or
facilities; or
(b) it merely aims to implement an existing law or treaty127
The ponencia follows this premise with the position that Article XVIII, Section 25 refers only to
the initial entry of bases, troops, or facilities, and not to the activities done after entry. 128
In construing Article XVIII, Section 25, the ponencia invokes the rule of verba legis, a cardinal
rule of construction stating that when the law is clear and free from any doubt or ambiguity,
then there is no room for construction or interpretation, only application.129 The law must be
given its literal meaning and applied without attempted interpretation.130 The ponencia asserts
that the plain meaning of "allowed in" refers solely to the initial entry.131 Thus, after entry, any
subsequent acts involving foreign military troops, bases, or facilities no longer fall under the
coverage of Article XVIII, Section 25.132
I believe that the ponencia's approach and interpretation are incorrect because they
are overly simplistic. The proper understanding of Article XVIII, Section 25 must take into
account the many considerations that bear upon its plain terms, among them, the treaty-
executive agreement distinctions under Article VII, Section 21 that I discussed above; the
history of Article XVIII, Section 25; the motivations that drove the framers to adopt the
provision; and the current and contemporaneous developments and usages that give full and
effective meaning to the provision.
Separately from textual interpretation considerations and as part of the history of Article XVIII,
Section 25, the basic concept of sovereignty that underlies it should not be forgotten. 133
Sovereignty means the full right and power of the nation to govern itself, its people, and its
territory without any interference from outside sources or entities.134 Within its territory, a
nation reigns supreme. If it will allow interference at all, such interference should be under the
terms the nation allows and has accepted;135 beyond those terms, the primacy of sovereignty
is the rule.136
Thus, if interference were to be allowed at all, or if exceptions to full sovereignty within a
territory would be allowed, or if there would be any ambiguity in the extent of an exception
granted, the interference, exception or ambiguity must be resolved in favor of the fullest
exercise of sovereignty under the obtaining circumstances. Conversely, if any ambiguity
exists at all in the terms of the exception or in the terms of the resulting treaty, then such
terms should be interpreted restrictively in favor of the widest application of the restrictions
embodied in the Constitution and the laws.
The ponencia cannot be incorrect in stating the rule that when terms are clear and
categorical, no need for any forced constitutional construction exists; 137 we need not divine
any further meaning but must only apply terms in the sense that they are ordinarily
understood.
A flaw, however, exists in the ponencia's application of verba legis as Article XVIII, Section 25
is neither plain nor that simple.
As pointed out above, it must be read together with Article VII, Section 21 for the general
rules on the treaty-making process. It also expressly refers to a historical incident - the then
coming expiration of the 1947 MBA. From these take-off points, the Article XVIII, Section 25
proceeds to a list of the matters it specifically addresses - foreign military bases, troops, or
facilities.
All these bring up the question that has so far been left undiscussed -what are the
circumstances that led to the expiration of the 1947 MBA and what are the foreign
military bases, troops, and facilities that Article XVIII, Section 25 refers to?
V.B. The History and Intent of Article XVIII, Section 25
The history of Article XVIII, Section 25 of the Constitution is practically summed up in the
introductory phrase of the provision - "After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of America concerning Military Bases x
x x.
Purely and simply, the framers of the Constitution in 1986 then looked forward to the
expiration of the U.S. bases coming in 1991 and wanted the terms of any future foreign
military presence governed by the Constitution itself. Behind this intent is the deeper policy
expressed under Article II, Section 7 of the Constitution -
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.cralawlawlibrary
During the constitutional deliberation on Article XVIII, Section 25, two views were espoused
on the presence of military bases in the Philippines. One view was that espoused by the anti-
bases group; the other group supported the view that this should be left to the policy makers.
Commissioner Adolfo Azcuna expressed the sentiment of the first group when he stated in
his privilege speech on 16 September 1986 that:chanRoblesvirtualLawlibrary
After the agreement expires in 1991, the question therefore, is: Should we extend a new
treaty for these bases to stay put in 1991 in our territory? The position of the committee is that
it should not, because the presence of such bases is a derogation of Philippine sovereignty.
It is said that we should leave these matters to be decided by the executive, since the
President conducts foreign relations and this is a question of foreign policy. I disagree,
Madam President. This is not simple a question of foreign policy; this is a question of national
sovereignty. And the Constitution is anything at all, it is a definition of the parameters of the
sovereignty of the people.138cralawlawlibrary
On the other hand, the second group posited that the decision to allow foreign bases into the
country should be left to the policy makers. Commissioner Jose Bengzon expressed the
position of this group that:chanRoblesvirtualLawlibrary
x x x this is neither the time nor the forum to insist on our views for we know not what lies in
the future. It would be foolhardy to second-guess the events that will shape the world, our
region and our country by 1991. It would be sheer irresponsibility and a disservice to the
highest calibre to our own country if we were to tie down the hands of our future governments
and future generations.139cralawlawlibrary
Despite his view that the presence of foreign military bases in the Philippines would lead to a
derogation of national security, Commissioner Azcuna conceded that this would not be the
case if the agreement would allow the foreign military bases, troops, and facilities to be
embodied in a treaty.140
After a series of debates, Commissioner Ricardo Romulo proposed an alternative formulation
that is now the current Article XVIII, Section 25.141 He explained that this is an explicit ban on
all foreign military bases other than those of the U.S.142 Based on the discussions, the spirit of
the basing provisions of the Constitution is primarily a balance of the preservation of the
national sovereignty and openness to the establishment of foreign bases, troops, or
facilities in the country.
Article XVIII, Section 25 imposed three requirements that must be complied with for an
agreement to be considered valid insofar as the Philippines is concerned. These three
requirements are: (1) the agreement must be embodied in a treaty; (2) the treaty must be duly
concurred in by 2/3 votes of all the members of the Senate;143 and (3) the agreement must be
recognized as a treaty by the other State.
On the second requirement, the two-thirds concurrence of all the members of the Senate, the
people's representative,144 may be viewed as the people's "voluntary submission" of their
sovereignty so they can reap the greater benefits of the agreement that the President, as
policymaker, entered into.
When the Congress so requires, the agreement should be ratified by a majority of the votes
cast by the people in a national referendum held for that purpose.145 This additional
requirement evinces the framers' intent to emphasize the people's direct participation in
treaty-making.
In Bayan v. Zamora,146 the Court relaxed the third requirement when it ruled that it is
sufficient that "the other contracting party accepts or acknowledges the agreement as a
treaty." In that case, since the U.S. had already declared its full commitment to the 1998
VFA,147 we declared that it was unnecessary for the U.S. to further submit the agreement to
the U.S. Senate.148
This history highlights the importance of the issue now before us, and stresses as well how
seriously the Constitution regards the Senate concurrence requirement. Thus, the issue can
neither be simply glossed over nor disregarded on the basis of stretched legal technicalities.
In case of doubt, as above discussed, such doubt should be resolved strictly in favor of what
the Constitution requires in its widest sense.
V.C. Historical Roots of the U.S. Bases in the Philippines
As a U.S. colony after the Treaty of Paris of 1898, the whole Philippines could be equated to
one big American base: the U.S. had sovereignty and had a free hand on how to deal with
defense matters and its military forces in the Philippines.
The Tydings-McDuffie Act of 1934 provided for the Philippines' self-government and
specified a procedural framework for the drafting of a constitution for the government of the
Commonwealth of the Philippines149 within two years from the Act's enactment.150 The Act,
more importantly, mandated the recognition by the U.S. of the independence of the Philippine
Islands as a separate and self-governing nation after a ten-year transition period.151
Prior to independence, the Act allowed the U.S to maintain military forces in the Philippines
and to call all military forces of the Philippine government into U.S. military service. 152The Act
empowered the U.S. President, within two years following independence, to negotiate
for the establishment of U.S. naval reservations and fueling stations in the Philippine
Islands.153
The negotiations for American bases that took place after independence resulted in the 1947
MBA.
V.C(l) The 1947 Military Bases Agreement
The 1947 MBA between the Philippines and the U.S. was signed on March 16, 1947. The
agreement officially allowed the U.S. to establish, maintain, and operate air and naval bases
in the country.154 It provided for about 23 listed bases and facilities for use by Americans for a
period of 99 years.155 The most important of these bases were the 180,000-acre Clark Air
Base in Pampanga, then the biggest American airbase outside of the continental U.S.A., and
the Subic Naval Base in Zambales.
The bases covered by the 1947 MBA were fixed bases where American structures and
facilities had been built and arms, weapons, and equipment were deployed and stored,
and where troops and civilian personnel were stationed, together with their families.
Other provisions of the 29-article 1947 MBA were the following:chanRoblesvirtualLawlibrary
 The bases were properties over which the U.S. originally exercised sovereignty but this
was subsequently transferred to the Philippines pursuant to the Romulo-Murphy
Agreement of 1979. After the transfer, the U.S. and its armed forces and personnel
were granted rent-free access up to the expiration of the Agreement.156
 The bases were for the mutual protection and cooperation of the two countries and for
this purpose were for their use as U.S. and Philippine military installations.157
 The U.S. had the right, power and authority necessary for the establishment, operation,
and defense of the bases and their control, 158 specifically:chanRoblesvirtualLawlibrary
o To operate, maintain, utilize, occupy, garrison, and control the bases;
o To improve and deepen the harbors, channels and entrances and anchorage, and
to construct and maintain necessary roads and bridges accessing the bases;
o To control the operation and safety of the bases and all the structures and facilities
in them;
o To acquire right-of-way by agreement and to construct telecommunication and
other facilities;
o To construct, install, maintain and employ on any base any type of facilities,
weapons, substance, device, or vessel as may be necessary;
o To bring into the Philippines members of the U.S. military forces and U.S. nationals
employed under contract by the U.S. with the families, as well as technical
personnel of other nationalities not otherwise excluded from the Philippines.
 The Philippine government was prohibited from granting any bases to other nations
without U.S. consent. 159
 The U.S. was permitted to recruit Filipino citizens, on voluntary basis, for service in the
American military.160
 The U.S. base commanders had the right to tax, distribute utilities, hand out licenses,
search without warrants, and deport undesirables.161
Complementing the signing of the 1947 MBA was the signing of the Military Assistance
Agreement of 1947 and the 1951 MDT.
Over the years, various provisions of the 1947 MBA were amended, gradually delimiting U.S.
control over the bases.162 On September 16, 1966, the Ramos-Rusk Agreement reduced its
term to 25 years starting from that year.
A review of the 1947 MBA in 1979 led to the formal transfer of control of Clark and Subic
bases to the Philippines.163 Thus, these bases became Philippine military installations
containing U.S. military facilities. The review also provided that each base would be under
a Filipino base commander, the Philippine flag was to fly singly in the bases; the
Philippine government was to provide security along the bases' perimeters; and the
review of the agreements would take place every five years starting in 1979.164
On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of
Friendship, Cooperation and Security that would have extended the life of the bases for 10
more years.165 The 1947 MBA was terminated on December 21, 1992 when the 25-year
tenure lapsed. This prompted the U.S. to vacate its bases effective at the end of December
1992.166 The departure of the U.S. warship Bellau Wood marked the closure of American
military bases in the country.167
With the expiration of the 1947 MBA, the detailed arrangements for the presence of U.S.
military forces and facilities in the Philippines, particularly those listed above, similarly ended,
leaving only the general arrangements under the 1951 Mutual MDT.
V.C(2) The 1951 Mutual Defense Treaty
The 1951 MDT was signed on August 30, 1951, while the U.S. was establishing a number of
bilateral defense alliances with key Asian States as it positioned itself to contain communist
expansion in Asia in the period following World War II and the Korean War. Despite periods
of drift, its relationship with its Asian allies provided the U.S. support and assistance
throughout the Cold War and during the Vietnam war. 168
The 1951 MDT provided the general terms of the defense alliance between the U.S. and the
Philippines; the more detailed terms were reflected in the earlier 1947 MBA that expired and
was not renewed in 1991.
The 1947 MBA and the 1951 MDT were the counterparts of U.S. agreements with the North
Atlantic Treaty Organization (NATO) countries. One of those agreements was the NATO
Status of Forces Agreement (NATO-SOFA), a multilateral agreement that applies to all the
NATO-member countries.169
After the World War II, the U.S. maintained various European bases.170 Despite the presence
of these bases, the U.S. entered into the NATO-SOFA on June 19, 1951, to define the terms
for the deployment and status of its military forces in these countries.171 Most of the other
NATO states, however, required ratification and implementing legislation, with additional
agreements to implement the NATO-SOFA.172
The 1951 MDT provides for an alliance - that both nations would support one another if either
the Philippines or the U.S. would be attacked by an external party.173 It states that each party
shall either, separately or jointly, through mutual aid, acquire, develop and maintain their
capacity to resist armed attack.174 It provides for a mode of consultations to determine the
1951 MDT's appropriate implementation measures and when either of the parties determines
that their territorial integrity, political independence, or national security is threatened by
armed attack in the Pacific.175 An attack on either party will be acted upon in accordance with
their constitutional processes and any armed attack on either party will be brought to the
attention of the United Nations for immediate action.176
The accord defines the meaning of an armed attack as including armed attacks by a hostile
power on a metropolitan area of either party, on the island territories under their jurisdiction in
the Pacific, or on their armed forces, public vessels, or aircrafts in the Pacific.177 The U.S.
government guaranteed to defend the security of the Philippines against external aggression
but not necessarily against internal subversion. The treaty expressly stipulates that its terms
are indefinite and would last until one or both parties terminate the agreement by a one-year
advance notice.178 The treaty subsequently became the basis for an annual joint exercise,
known as Balikatan, between the Philippines and the U.S.179
On the whole, the 1951 MDT embodied an alliance and defense agreement, focused as it is
on joint action and defenses against armed external attacks. It made no provision for bases,
troops, or facilities which the 1947 MBA contained and which lapsed when the MBA's term
expired.
V.C(3) The 1998 Visiting Forces Agreement
The 1998 VFA came after the expiration of the 1947 MBA in 1991 and opened a limited
window for the presence of American troops in the Philippines. It was entered into during
the era when the U.S. was envisioning "access" as a new approach in maintaining its
presence in Southeast Asia. Instead of permanent bases, the approach sought bilateral
arrangements — like those with Singapore — for training, exercises, and interoperability
to allow for uninterrupted forward deployment in the Asian region; their continued presence in
the region assures faster response to developments in flash points in the eastern
hemisphere.180
In line with the American approach, the 1998 VFA allows the rotational presence of U.S.
military forces and their operations anywhere in the Philippines for a temporary but undefined
length of time to train and inter-operate with the Philippine armed forces and to use their
facilities. The Philippines retains jurisdiction over criminal cases, including capital offenses,
involving U.S. troops.181
In Bayan v. Zamora,182 the Court held that although the agreement did not entail the
permanent basing of a foreign military force, it required a treaty because Article XVI11,
Section 25 of the Constitution covers not only the presence of bases but also the presence of
"troops."183 As a treaty, the 1998 VFA required the concurrence of the Senate pursuant to
Article VII, Section 21 of the Constitution.
The Court also held that the Philippines is bound to accept an official declaration by the U.S.
to satisfy the requirement that the other contracting party must recognize the agreement as a
treaty.184 It noted that the Vienna Convention on the Law of Treaties leaves each state free to
choose its form of giving consent to a treaty.185
V.D. The EDCA
As heretofore outlined, the U.S. adopted the "Pivot to Asia" strategy beginning 2009 under
the administration of President Barack Obama. In the article Explaining the U.S. Pivot to Asia,
Kurt Campbell and Brian Andrews enumerated six key efforts under the U.S.'s "Pivot to Asia"
policy, namely: alliances; improving relationships with emerging powers; economic statecraft;
engaging with multi-lateral institutions; support for universal values; and increasing military
presence.186
On military presence, the operative word is "presence": the forward deployment of U.S.
military forces in Asia.187The EDCA perfectly fits the American strategy as it allows the
prepositioning of equipment and supplies in agreed locations to enhance the U.S.'s
"development of a geographically dispersed, politically sustainable force posture in
the region."188
The EDCA was signed on April 28, 2014, in Manila, by Philippine Defense Secretary Voltaire
Gazmin, and U.S. Ambassador to the Philippines Philip Goldberg, in time for the official state
visit by U.S. President Barack Obama. The 10-year accord is the second military agreement
between the U.S. and the Philippines (the first being the 1998 VFA) since American troops
withdrew from its Philippines naval base in 1992.
The agreement allows the U.S. to station troops and operations on Philippine territory without
establishing a permanent base189 and with the stipulation that the U.S. is not allowed to store
or position any nuclear weapons on Philippine territory. 190
The EDCA was entered into for the following purposes:chanRoblesvirtualLawlibrary
1. This Agreement deepens defense cooperation between the Parties and maintains and
develops their individual and collective capacities, in furtherance of Article II of the MDT,
which states that "the Parties separately and jointly by self-help and mutual aid will maintain
and develop their individual and collective capacity to resist armed attack," and within the
context of the VFA. This includes:chanRoblesvirtualLawlibrary
(a) Supporting the Parties' shared goal of improving interoperability of the Parties' forces and
for the Armed Forces of the Philippines ("AFP"), addressing short-term capabilities gaps;
promoting long-term modernization, and helping maintain and develop additional maritime
security, maritime domain awareness, and humanitarian assistance and disaster relief
capabilities; and
(b) Authorizing access to Agreed Location in the territory of the Philippines by United States
forces on a rotational basis as mutually determined by the Parties.
2. In furtherance of the MDT, the Parties mutually agree that this Agreement provides the
principal provisions and necessary authorizations with respect to Agreed Locations.
3. The Parties agree that the United States may undertake the following types of activities in
the territory of the Philippines in relation to its access to and use of Agreed Locations:
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.191cralawlawlibrary
To summarize, the EDCA has two main purposes:chanRoblesvirtualLawlibrary
First, it is intended as a framework for activities for defense cooperation in accordance with
the 1951 MDT and the 1998 VFA.
Second, it grants to the U.S. military the right to use certain identified portions of the
Philippine territory referred to in the EDCA as Agreed Locations. This right is fleshed out in
the EDCA when the agreement identifies the privileges granted to the U.S. in bringing in
troops and facilities, in constructing structures, and in conducting activities. 192
The EDCA is effective for 10 years, unless both the U.S. and the Philippines formally agree to
alter it.193 The U.S. is bound to hand over any and all facilities in the "Agreed Locations" to the
Philippine government upon the termination of the Agreement.
In terms of contents, EDCA may be divided into two:chanRoblesvirtualLawlibrary
First, it reiterates the purposes of the 1951 MDT and the 1998 VFA in that it affirms the
continued conduct of joint activities betweent the U.S. and the Philippines in pursuit of
defense cooperation.
Second, it contains an entirety new agreement pertaining to Agreed Locations, the right of
the LIS. military to stay in these areas and conduct activities which may not be imbued with
mutuality of interests since they do not involve defense cooperation.
The latter provides support for two interrelated arguments that I will forward in this Opinion.
First, the EDCA refers to the presence of foreign military bases, troops, and facilities in this
jurisdiction. Second, the EDCA is not a mere implementation of, but goes beyond, the 1951
MDT and the 1998 VFA. It is an agreement that, introduces new terms and obligations not
found in the 1951 MDT and the 1998 VFA, and thus requires the concurrence of the Senate.
V.D(l) Does the EDCA involve the entry of military bases to the Philippines as
envisioned under Article XVIII, Section 25?
V.D(l)(i) The Concept of a Foreign Military Base
A reading of the EDCA will reveal that it pertains to the presence in this country of a foreign
military base or the modem equivalent of one. While Article XVIII, Section 25 mentions no
definition of what a foreign military base, troops, or facility is, these terms, at the time the
1987 Constitution was drafted, carried a special meaning. In fact, this meaning was the
compelling force that convinced the framers to include Article XVIII, Section 25 in the 1987
Constitution.
More specifically, when the framers of the 1987 Constitution referred to foreign military bases,
they had in mind the then existing 1947 MBA.194 This is apparent from the text of the
provision itself which makes direct reference to the treaty, as well as from the exchanges of
the framers of the 1987 Constitution prior to their vote on the proposed provision. 195
In construing the meaning of statutes and of the Constitution, one aim is to discover the
meaning that the framers attached to the particular word or phrase employed.196 The
pertinent statute or provision of the Constitution must then be "construed as it was intended
to be understood when it was passed."197
Thus, a proper interpretation of the meaning of foreign military bases must take into account
how it was understood by the framers in accordance with how the 1947 MBA established
U.S. military bases in the Philippines. It is in this technical and precise meaning that the term
military base was used. It is this kind of military bases that Article XVIII, Section 25 intends to
cover, subject to specific qualifications.
Hence, the concept of military bases as illustrated in the 1947 MBA should be taken into
account in ascertaining whether the EDCA contemplates the establishment of foreign military
bases. This reality renders a comparison of the 1947 MBA and the EDCA appropriate.
To clarify this position, it is not that the framers of the 1987 Constitution had in mind the
specific existing foreign military bases under the 1947 MBA when they drafted Article XVIII,
Section 25. Such a position unjustifiably assumes that the framers lacked foresight and
merely allowed themselves to be solely limited by the existing facts.
Rather, my position is that it is the concept of a foreign military base under the 1947
MBA, and not the specific military bases listed in its Annexes, that should be determinative of
what the Constitution intends to cover. The foreign military base concept should (a) to construct (including
necessarily be adjusted, too, to take into account the developments under the new dredging and filling), operate,
U.S. "Pivot to Asia" strategy. maintain, utilize, occupy,
garrison and control the bases;
V.D(l)(ii) EDCA and the 1947MBA Compared
(b) to improve and deepen the
A first material point to note is that the obligations under the EDCA are similar to the
harbors, channels, entrances
obligations found in the 1947 MBA. To support this view, I present below a side by side
and anchorages, and to
comparison of the relevant provisions of the EDCA and the 1947 MBA. construct or maintain necessary
roads and bridges affording
EDCA 1947 MBA access to the bases;
Article III, Section 1 Article III, par. 1
xxxx
With the consideration of the views of the Parties, the It is mutually agreed that the Article VII, Section 1. Article III, par 2 (d)
Philippines hereby authorizes and agrees that United United States shall have the
States forces, United States contractors, and vehicles, rights, power, and authority The Philippines hereby grants to United States forces and xxxx
vessels, and aircraft operated by or for United States within the bases which are United States contractors the use of water, electricity, and
forces may conduct the following activities with respect to necessary for the other public utilities on terms and conditions, including the right to acquire, as may be
Agreed Locations: training, transit, support and related establishment, use, operation rates of charges, no less favorable than those available to
activities, refueling of aircraft; bunkering of vessels; and defense thereof or agreed between the two
the AFP or the Government of the Philippines, x x x Governments, such rights of
temporary maintenance of vehicles, vessels, and aircraft; appropriate for the control
way, and to construct thereon,
temporary accommodation of personnel; communications; thereof and all the rights, power
Article VII, Section 2 as may be required for military
prepositioning of equipment, supplies, and materiel; and authority within the limits of
purposes, wire and radio
deploying forces and materiel and such other activities as territorial waters and air space
the Parties may agree. adjacent to, or in the vicinity of, The Parties recognize that it may be necessary for United communications facilities,
the bases which are necessary States forces to use the radio spectrum. The Philippines including submarine and
authorizes the United States to operate its own subterranean cables, pipe lines
Article VI, Section 3 to provide access to them, or
telecommunications systems (as telecommunication is and spur tracks from railroads to
appropriate for their control.
defined in the 1992 Constitution and Convention of the bases, and the right, as may be
United States forces are authorized to exercise all rights International Telecommunication Union "ITU"). This shall agreed upon between the two
and authorities within the Agreed Locations that are include the right to utilize such means and services Governments to construct the
necessary for their operational control or defense, required to ensure the full ability to operate necessary facilities;
including undertaking appropriate measures to protect telecommunications systems and the right to use all
United Stains forces and United States contractors. The necessary radio spectrum allocated for this purpose, xxx xxxx
United States should coordinate such measures with
appropriate authorities of the Philippines. Article IV, Section 1 Article III, par (2) (e)
Article III, Section 4 Article III, par. 2 (a) and (b)
The Philippines hereby authorizes United States forces, xxxx
through bilateral mechanisms, such as the MDB and SEB,
The Philippines hereby grants to the United States, xxxx to preposition and store defense equipment, supplies and to construct, install, maintain,
through bilateral securit ymechanisms, such as the MDB materiel ("prepositioned materiel"), including, but not and employ on any base any
and SEB, operational control of Agreed Locations for 2. Such rights, power, and limited to, humanitarian assistance and disaster relief type of facilities, weapons,
construction activities and authority to undertake activities authority shall include, interlia, equipment, supplies, and materiel, at Agreed Locations. substance, device, vessel or
on, and make alterations and improvements to, Agreed the right, power and authority : United States forces x x x
Locations, x x x vehicle on or under the ground,
in the air or on or under the
water that may be requisite or
Article IV, Section 3 appropriate, including (1) the right to construct structures and other facilities for the proper functioning of the bases;
meteorological systems, aerial
and water navigation lights, (2) the right to perform activities for the defense or security of the bases or Agreed Locations;
The prepositioned materiel of the United States shall be
for the exclusive use of United States forces, and full title radio and radar apparatus and
(3) the right to preposition defense equipment, supplies and materiel; and,
to all such equipment, supplies, and materiel remains with electronic devices, of any
the United States. United States forces shall have control desired power, type of emission
and frequency. (4) other related rights such as the use of public utilities and public services.
over the access and disposition of such prepositioned
materiel and shall have the unencumbered right to remove
Only those who refuse to see cannot discern these undeniable parallelisms.
such prepositioned materiel at any time from the territory
of the Philippines.
Further, even independently of the concept of military bases under the 1947 MBA, the
provisions of the EDCA itself provide a compelling argument that it seeks to allow in this
Article IV, Section 4 country what Article XVIII, Section 25 intends to regulate.

United States forces and United States contractors shall
have unimpeded access j 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.
Article III, Section 2
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, an airfield) including those owned
or controlled by local governments, and to other land and
facilities (including roads, ports and airfields).
There exists no rigid definition of a military base. However, it is a term used in the field of
military operations and thus has a generally accepted connotation. The U.S. Department of
Defense (DoD) Dictionary of Military and Associated Terms defines a base as "an area or
locality containing installations which provide logistic or other support"; home airfield; or home
carrier.198
Article VII Under our laws, we find the definition of a military base in Presidential Decree No. 1227
which states that a military base is "any military, air, naval, coast guard reservation, base,
fort, camp, arsenal, yard, station, or installation in the Philippines."199 A military base
It is mutually agreed that the
connotes the presence, in a relatively permanent degree, of troops and facilities in a
United States may employ and
particular area.200
use for United States military
forces any and all public utilities,
In 2004, the U.S. DoD released Strengthening U.S. Global Defense Posture, a report to U.S.
other services and facilities,
Congress about the renewed U.S. global position.201 The U.S. DoD redefined and reclassified
airfields, ports, harbors, roads,
their military bases in three categories:chanRoblesvirtualLawlibrary
highways, railroads, bridges,
viaducts, canals, lakes, rivers
Main Operating Base (MOB)
and streams in the Philippines
under conditions no less
Main operating bases, with permanently stationed combat forces and robust infrastructure,
favorable than those that may
will be characterized by command and control structures, family support facilities, and
be applicable from time to time
strengthened force protection measures. Examples include Ramstein Air Base (Germany),
to the military forces of the
Kadena Air Base (Okinawa, Japan), and Camp Humphreys (Korea).
Philippines.
Forward Operating Site (FOS)

While the 1947 MBA grants broader powers to the U.S., due perhaps to the geopolitical
context under which the agreement was forged (the 1947 MBA had an international, in
contrast with EDCA's Asian, focus), the EDCA and the 1947 MBA essentially pursue the
same purpose - the identification of portions of Philippine territory over which the U.S.
is granted certain rights for its military activities.
These rights may be categorized into four:chanRoblesvirtualLawlibrary
Forward operating site will be an expandable "warm facilities" maintained with a limited U.S.
military support presence and possibly prepositioned equipment. FOSs will support rotational
rather than permanently stationed forces and be a focus for bilateral and regional training.
Examples include the Sembawang port facility in Singapore and Soto Cano Air Base in
Honduras.cralawlawlibrary
The following are the key characteristics of an FOS:chanRoblesvirtualLawlibrary
 Stockpiling of military materiel in the Philippines is explicitly permitted under the following
First, an FOS is an expandable/scalable facility. Andrew Krepinevich and Robert Work noted EDCA provisions:chanRoblesvirtualLawlibrary
that an FOS can support both small and large forces, and can be readily expanded to serve
as expeditionary or campaign bases should a crisis erupt nearby. 202 1. Article III, par. 1: The activities allowed on the agreed locations include: (i) the
prepositioning of equipment, supplies, and materiel; (ii) deploying forces and
Second, the facility is maintained or "kept warm" by limited U.S. military support personnel or materiel; and (iii) such other activities as the Parties may agree.
U.S. military contractors. It hosts rotational rather than permanently stationed forces. An FOS
may also house prepositioned equipment. 2. Article IV, par. 1: U.S. forces are allowed to preposition and store defense
equipment, supplies, material ("prepositioned materiel"), including, but not
Finally, an FOS facility does not need to be owned by the U.S. {i.e., the Sembawang Port limited to, humanitarian assistance and disaster relief equipment, supplies, and
Facility and the Paya Lebar Airfield in Singapore). FOSs are generally bases that support materiel, at agreed locations.
forward-deployed rather than forward-based forces.203
3. Article IV, par. 3: The prepositioned materiel is for the exclusive use of U.S.
The third classification of military bases is a Cooperative Security Location, described as forces and full title shall belong to the U.S.
follows:chanRoblesvirtualLawlibrary
4. Article IV, par. 4: The U.S. forces and U.S. contractors shall have unimpeded
Cooperative Security Location (CSL) access to the agreed locations for all matters relating to the prepositioning and
storage of defense equipment, supplies, and materiel, including delivery,
Cooperative security locations will be facilities with little or no permanent U.S. presence. management, inspection, use, maintenance, and removal of such equipment,
Instead they will be maintained with periodic service, contractor, or host-nation support. CSLs supplies and materiel.
will provide contingency access and be a focal point for security cooperation activities. A
current example of a CSL is in Dakar, Senegal, where the U.S. Air Force has negotiated
cralawlawlibrary
contingency landing, logistics, and fuel contracting arrangements, and which served as a
staging area for the 2003 peace support operation in Liberia.204cralawlawlibrary
Notably, neither the 1951 MDT nor the 1998 VFA authorized stockpiling. The 1951 MDT
focused on developing the Philippines and the U.S.'s capacity to resist an armed attack while
The GDPR emphasized that the U.S.'s plan is to establish a network ofFOSs and CSLs in
1998 VFA focused on the entry and exit of US troops in the country. No provision in either
Asia-Pacific to support the global war on terrorism and to provide multiple avenues of
treaty specifically allows stockpiling of military materiel.
access for contingency operations. These facilities serve to expand training opportunities
for the U.S. and the host-country. FOSs and CSLs allow U.S. forces to use these areas in
In sum, the Agreed Locations mentioned in the EDCA are areas where the U.S. can perform
times of crisis while avoiding the impression of establishing a permanent presence. 205
military activities in structures built by its personnel. The extent of the U.S.' right to use of the
Notably, these access agreements are less expensive to operate and maintain than MOBs. 206
Agreed Locations is broad enough to include even the stockpiling of weapons and the shelter
Moreover, FOSs and CSLs allow overseas military presence with a lighter footprint.207
and repair of vessels over which the U.S. personnel has exclusive control. Clearly, this is a
military base as this term is ordinarily understood.
To go back to the EDCA, it notably allows the U.S. to use the Agreed Locations for the
following activities: "training, transit, support and related activities, refueling of aircraft;
Further, as we held in Bayan Muna, Article XVIII, Section 25 refers to three different
bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary
situations: the presence of foreign military bases, troops, or facilities.212Even assuming that
accommodation of personnel; communications; prepositioning of equipment, supplies, and
the EDCA is not a basing agreement, it nevertheless involves the deployment of troops
materiel; deploying forces and materiel and such other activities as the Parties may agree. 208
and facilities in Philippine soil. As I have already stated, the EDCA allows U.S. forces to
enter and remain in the Philippines. It defines U.S. forces to include U.S. military and civilian
In order to carry out these activities, the EDCA allows U.S. military personnel to enter and
personnel and U.S. Armed Forces property, equipment, and materiel.213 The EDCA itself
remain in Philippine territory. It grants the U.S. the right to construct structures and
provides that the U.S. can deploy forces and materiel in the Agreed Locations.214
assemblies.209 It also allows the U.S. to preposition defense equipment, supplies and
materiel.210 The U.S. personnel may also use the Agreed Locations to refuel aircraft and
That the EDCA allows this arrangement for an initial period of 10 years, to continue
bunker vessels.211
automatically unless terminated,215 is further proof that it pertains to the presence in
Philippine soil of foreign military bases, troops, and facilities on a more or less permanent
basis.
Note, at this point, that the Senators, during the ratification of the 1998 VFA, observed that it
only covers temporary visits of U.S. troops and personnel in the country. These Senators
gave their consent to the 1998 VFA on the knowledge that the U.S. forces' stav in the
country may last only up to three weeks to six months per batch. 216
This temporary stay of U.S. forces in the Philippines under the 1998 VFA means that it does
not cover, or approve of a more permanent stay of U.S. forces and their equipment in the
Philippines. Significantly, this is the key characteristic of the Agreed Locations in the EDCA.
For, if the EDCA had not envisioned the stay of U.S. forces and equipment in the Agreed
Locations in the Philippines for a period longer tlian envisioned in the 1998 VFA, it would not
have added obligations regarding the storage of their equipment and materiel. The more
permanent nature of the EDCA, in contrast to the 1998 VFA, indicates a change in the tenor
of the agreement in the EDCA, one that does not merely implement the 1998 VFA.
V.D(2) Does the EDCA Merely Implement the 1951 MPT?
This question responds to the ponencia's argument that the EDCA can be embodied in an
executive agreement because it merely provides implementing details for the 1951 MDT.217
V.D(2)(i) The Effects of the Expiration of the 1947
MBA and of the Adoption of the 1987 Constitution
The sequence of events relating to American bases, troops, and facilities in the Philippines
that took place since Philippine independence, is critical in responding to the question in
caption. It should be remembered that as a condition under the Tydings-McDuffie Act for the
grant of Philippine independence, the Philippines was bound to negotiate with the U.S. for
bases in the Philippines, resulting in the 1947 MBA.
This agreement contained the detailed terms relating to the existence and operation of
American bases and the presence of American forces and facilities in the Philippines. As its
title denotes, the 1951 MDT is the treaty providing for alliance and mutual defense against
armed attack on either country; it only generally contained the defense and alliance
relationship between the Philippines and the U.S.
In 1987, the Philippines adopted a new Constitution. This Charter directly looked forward to
the expiration of the 1947 MBA and provided for the terms under which foreign military bases,
troops, and facilities would thereafter be allowed into the Philippines. The 1947 MBA expired
in 1991 and no replacement treaty took its place; thus, all the detailed arrangements
provided under the 1947 MBA for the presence of U.S. bases, troops and facilities also
ended, leaving only the 1951 MDT and its general terms in place.
Under this situation, the detailed arrangements that expired with the 1947 MBA were not
carried over to the 1951 MDT as this treaty only generally provided for the defense and
alliance relationship between the U.S. and the Philippines. Thus, there were no specific
policies on military bases, troops, and facilities that could be implemented and
operationalized by subsequent executive agreements on the basis of the MDT.
In particular, the terms of the 1947 MBA that had expired and had not been renewed
cannot be deemed carried over to the 1951 MDT. If any such future agreements would
be made after the effectivity of the 1987 Constitution, then such agreements would be
governed by Article XVIII, Section 25 of the new Constitution.
Significantly, when the 1987 Constitution and its Article XVIII, Section 25 took effect, no
absolute prohibition against the introduction of new U.S. bases, troops, and facilities was put
in place. In fact the 1951 MDT then still existed as a general defense alliance of the
Philippines and the U.S. against armed attack by third parties. But the introduction of military
bases or their equivalent, of troops, and of military facilities into the Philippines can now only
take place by way of a treaty concurred in by the Senate.
V.D(2)(ii) The 1951 MDT examined in lisht of the EDCA
That the EDCA is purely an implementation of the 1951 MDT and does not need to be in the
form of a treaty, is not tenable for two reasons.
First, The EDCA grants rights and privileges to the U.S. that go well beyond what is
contemplated in the 1951 MDT and the 1998 VFA.
Second, even the assumptions that the EDCA is indeed a mere implementation of both the
earlier 1951 MDT and the 1998 VFA, this assumption by no means provides an argument in
favor of treating the EDCA as an executive agreement. Notably, the 1998 VFA is also
recognized as an implementation of the 1951 MDT yet the Government deemed it necessary
to have it embodied in a separate treaty concurred in by the Senate.
On the first argument an analysis of the 1951 MDT, the 1998 VFA, and the EDCA reveals
that the EDCA is a stand-alone agreement.
The 1951 MDT is a treaty intended for the collective defense of its signatory countries (i.e.,
the U.S. and the Philippines) against external armed attack. This is apparent from its
declaration of policies which states, among others, that the U.S. and the Philippines have
agreed to the MDT in pursuit of their desire to-
x x x 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.218cralawlawlibrary
The rest of the text of the 1951 MDT consistently highlights this goal. Its Article II states that
the parties shall "separately and jointly by self-help and mutual aid maintain and develop their
individual and collective capacity to resist armed attack." Article III provides that the parties
shall "consult together" regarding the implementation of the MDT whenever in their opinion
the "territorial integrity, political independence or security of either of the parties is threatened
by external armed attack in the Pacific." Article IV declares that an armed attack in the
Pacific area on either of the parties would be dangerous to each other's peace and safety and
thus they would act to meet the common danger. Article V then proceeds to define an armed
attack as to include an armed attack on "the metropolitan territory of either parties or on the
island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels
and aircrafts in the Pacific."
This Court has had occasion to explain the nature of the 1951 MDT. In Lim v. Executive
Secretary,219 we said —
xxx 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 x x x. [Emphasis supplied]cralawlawlibrary
Thus, the essence of the 1951 MDT is the conduct of joint activities by the U.S. and the
Philippines in accordance with the dictates of collective defense against an attack in the
Pacific. This is a focus that the EDCA lacks.
V.D(2)(iii) The 1951 MDT Compared with Other Defense Alliance Agreements
Our military obligations to the U.S. under the 1951 MDT are (1) to maintain and develop our
military capacity to resist armed attack, and (2) to recognize that an armed attack against the
U.S. in the Pacific is an attack on the Philippines and to meet the common danger in
accordance with our constitutional process. The relevant provisions
read:chanRoblesvirtualLawlibrary
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 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 purposes of ARTICLE IV, an armed attack on either of the Parties is deemed to
include an armed attack on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft
in the Pacific.cralawlawlibrary
(Fortunately, the limits of the 1951 MDT have not been tested in actual operation since
neither the Philippines nor the U.S. has as yet been the subject of an armed attack in the
Pacific region.)
In relating the 1951 MDT to the EDCA, I glean from the ponencia the intent to seize the term
"mutual aid" in developing the contracting parties' collective capacity to resist an armed
attack, as basis for the US to establish a military base or a military facility or station military
troops in the Philippines.220 This reading, however, would be a novel one in the context of
American agreements with other Asian countries with their own alliance and MDTs with the
U.S.
Note that Article II of the RP-U.S. 1951 MDT is similar to the following provisions in other
MDTs:chanRoblesvirtualLawlibrary
(1) The 1953 US-South Korean MDT
Article II
The Parties will consult together whenever, in the opinion of either of them, the political
independence or security of either of the Parties is threatened by external armed attack.
Separately and jointly, by self-help and mutual aid, the Parties will maintain and develop
appropriate means to deter armed attack and will take suitable measures in consultation
and agreement to implement this Treaty and to further its purposes.221cralawlawlibrary
(2) The 1954 US-Taiwan (Republic of China) MDT
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 and communist subversive activities directed from without
against their territorial integrity and political stability. 222cralawlawlibrary
(3) the 1960 US-Japan Treaty of Mutual Co-operation and Security
Article III
The Parties, individually and in cooperation with each other, by means of continuous and
effective self-help and mutual aid will maintain and develop, subject to their constitutional
provisions, their capacities to resist armed attack.223cralawlawlibrary
With little variance,224 these articles are essentially identical to Article II of the RP-U.S. 1951
MDT.
But notably, despite the existence of the above-mentioned provisions, all three treaties also
saw the need to include a separate provision explicitly granting the U.S. the right to access
and use of areas and facilities of the other contracting party.
Thus:chanRoblesvirtualLawlibrary
 Article IV
(US-Korea)
The Republic of Korea grants, and the United States of America accepts, the right to
dispose United States land, air and sea forces in and about the territory of the
Republic of Korea as determined by mutual agreement.225
Article VII
(US-Taiwan)
The Government of the Republic of China (Taiwan) grants, and the Government of the United
States of America accepts, the right to dispose such United States land, air and sea
forces in and about Taiwan and the Pescadores as may be required for their defense, as
determined by mutual agreement.226
Article VI
(US-Japan)
For the purpose of contributing to the security of Japan and the maintenance of international
peace and security in the Far East, the United States of America is granted the use by its
land, air and naval forces of facilities and areas in Japan.
The use of these facilities and areas as well as the status of United States armed forces in
Japan shall be governed by a separate agreement, replacing the Administrative Agreement
under Article III of the Security Treaty between Japan and the United States of America,
signed at Tokyo on February 28, 1952, as amended, and by such other arrangements as may
be agreed upon.227cralawlawlibrary
These three articles do not have any counterpart in the RP-US 1951 MDT. Understandably
perhaps, counterpart provisions are not in the 1951 MDT as our commitment to grant the U.S.
use and access to areas and facilities in the Philippine territory was embodied in an earlier
agreement, the 1947 MBA (which, however, expired, thus ending the use and access grants
to the U.S. and its armed forces).
In my view, the implication of the above-quoted provisions in the US-South Korea, US-
Taiwan, and US-Japan treaties (on "mutual aid") is clear: the obligation to provide mutual
aid under Article II of the RP-US 1951 MDT (and its counterpart provisions) does not
include the obligation to allow the entry and the stationing of U.S. troops or the
establishment of military bases or facilities.
In light particularly of the constitutional developments in 1987, the 1951 MDT cannot be
invoked as an umbrella agreement that would legally justify the grant to the U.S. of entry,
access, and use of Philippine-owned areas or facilities without Senate concurrence. These
activities, which the EDCA seeks to do allegedly pursuant to the 1951 MDT, do not fall within
the purview of our commitments under the earlier treaty.
V.D(3) Does the EDCA Merely Implement the 1998 VFA?
Is the EDCA merely an agreement implementing the 1998 VFA which already allows the
limited entry of U.S. military troops and the construction of facilities?
The quick and short answer to the above question is — No, the EDCA does not implement
the 1998 VFA as the EDCA in fact provides a wider arrangement than the 1998 VFA with
respect to the entry of military bases, troops, and facilities into the Philippines. A naughty
view is that the 1998 VFA should form part of the EDCA and not the other way around.
Another reality, based on the treaty-executive agreement distinctions discussed above, is that
the EDCA introduces new arrangements and obligations to those existing under the
1998 VFA; hence, the EDCA should be in the form of a treaty.
V.D(3)(i) The 1998 Visiting Forces Agreement
The Philippines' primary obligation under the 1998 VFA, is to facilitate the entry and
departure of U.S. personnel in relation with "covered activities;"228 it merely defines the
treatment of U.S. personnel visiting the Philippines; hence, its name.229 It is in fact a
counterpart of the NATO-SOFA that the U.S. forged in Europe.
The Preamble of the VFA defines its objectives - to govern the terms of visits of "elements of
the United States Armed Forces" to the Philippines, while the body of the agreement contains
the agreed conditions. To quote from the relevant provisions of the 1998
VFA:chanRoblesvirtualLawlibrary
VISITING FORCES AGREEMENT
Preamble
The Government of the Republic of the Philippines and the Government of the United States
of America,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30,
1951:chanRoblesvirtualLawlibrary
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 Republic of the Philippines and the United States
promotes their common security interests;
Recognizing the desirability of defining the treatment of United States personnel visiting the
Republic of the Philippines;

Have agreed as follows:chanRoblesvirtualLawlibrary
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, x x x
xxxx
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, x x xcralawlawlibrary
As the ponencia correctly observed, the 1998 VFA itself does not specify what "activities"
would allow the entry of U.S. troops into the Philippines. The parties left this open and
recognized that the activities that shall require the entry of U.S. troops are subject to future
agreements and the approval by the Philippine Government.
How this approval, however, will be secured is far from certain. What is certain is that beyond
the restrictive "visits" that the 1998 VFA mentions, nothing else is said under the express
terms of the Agreement.
Harking back to the 1947 MBA and its clear and certain terms, what comes out boldly is that
the 1998 VFA is not an agreement that covers "activities" in the way that the 1947 MBA
did; it is simply an agreement regulating the status of and the treatment to be
accorded to US. armed forces personnel and their aircraft and vehicles while visiting
the Philippines. The agreement itself does not authorize U.S. troops to permanently stay in
the Philippines, nor authorize any activity related to the establishment and the operation of
bases, as these activities had been defined under the 1947 MBA.
As discussed under the treaty-executive agreement distinctions above, if indeed the activities
would be in line with the original intent of the 1998 VFA, then an executive agreement would
suffice as an implementing agreement. On the other hand, if the activity would be a
modification of the 1998 VFA or would be beyond its terms and would entail the
establishment of a military base or facility or their equivalent, and the introduction of troops,
then, a treaty duly concurred in by the Senate would be the appropriate medium of the U.S.-
Philippines agreement.
This Court has had the opportunity to examine the 1998 VFA in Bayan Muna230 and
described the agreement in this wise -
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.cralawlawlibrary
In Lim v. Executive Secretary,231 this Court further explained:chanRoblesvirtualLawlibrary
The VFA provides the "regulatory mechanism" by which "United States military and
civilian personnel |may visitl 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. [Emphasis supplied]cralawlawlibrary
The 1998 VFA allows the entry of U.S. military personnel to Philippine territory and grants the
U.S. specific rights; it is essentially an agreement governing the rules for the visit of "US
armed forces in the Philippines from time to time"232 in pursuit of cooperation to promote
"common security interests;" it is essentially a treaty governing the sojourn of US forces in
this country for joint exercises.233
Significantly, the 1951 MDT and the 1998 VFA contain a similar feature -joint activities in
pursuit of common security interests. The EDCA, on the other hand, goes beyond the terms
of the 1951 MDT and the 1998 VFA.
As explained above, the EDCA has two purposes. First, it is an agreement for the conduct of
joint activities in accordance with the 1951 MDT and the 1998 VFA. This, however, is not the
centerpiece of the EDCA. Its centerpiece is the introduction of Agreed Locations which
are portions of the Philippine territory whose use is granted to the U.S. 234The EDCA
then proceeds to list the rights that the U.S. has over the Agreed Locations.235
A reading of the EDCA's provisions shows that the rights and privileges granted to the U.S.
do not always carry a concomitant right on the part of the Philippines nor do they involve joint
exercises. While the EDCA mentions that the Agreed Locations may be used for "security
cooperation exercises"236 and "joint and combined training activities,"237 the provisions of the
EDCA also provide for the conduct of other activities beyond the 1951 MDT and the 1998
VFA.
Within the Agreed Locations, the U.S. may conduct trainings for its troops, transit, support
and related activities.238The EDCA also allows the U.S. to use the Agreed Locations to refuel
aircraft, bunker vessels, temporarily maintain vehicles, vessels and aircraft. 239 Significantly, it
does not provide for any qualification on the purpose for the entry of these vessels, vehicles,
and aircraft into Philippine jurisdiction.
The EDCA also permits the temporary accommodation of personnel,240again without any
qualification as to the purpose of their visit. The U.S. forces may also engage in
communications activities including the use of its own radio spectrum,241similarly without any
limitation as to the purpose by which such communications shall be carried out.
Further, within the Agreed Locations, the U.S. can also preposition defense equipment,
supplies, and materiel over which the U.S. forces shall have exclusive use and
control.242Clearly, the right to deploy weapons can be undertaken even if it is not in the
pursuit of joint activities for common security interests.
These rights, granted to the U.S. under the EDCA, do not contain an element of mutuality
in the sense that mutuality is reflected in the 1951 MDT and the 1998 VFA. As these rights go
beyond the earlier treaties and are, in fact, independent sources of rights and obligations
between the U.S. and the Philippines, they cannot be mere details of implementation of both
the 1951 MDT and the 1998 VFA.
And, as pointed out earlier, the Agreed Locations under the EDCA are akin to the military
bases contemplated under the 1947 MBA. Thus, by its own terms, the EDCA is not only a
military base agreement outside the provisions of the 1951 MDT and the 1998 VFA, but a
piecemeal introduction of military bases in the Philippines.
Note that, at this point, there exists no agreement on the establishment of U.S. military bases
in the Philippines; the EDCA re-introduces a modernized version of the fixed military
base concept contemplated and operationalized under the 1947 MBA.
V.D(4) The 1951 MPT and 1998 VFA in conjunction with the EDCA
An additional dimension that the EDCA introduces - the treatment of U.S. forces and U.S.
contractors - reveals that it does not merely implement the 1951 MDT and the 1998 VFA,
but adds to the obligations in these agreements.
To support its conclusion that the EDCA implements the provisions in the 1951 MDT and the
1998 VFA, the ponencia points out that the EDCA references 1951 MDT and the 1998 VFA in
allowing the entry of U.S. personnel and U.S. forces in the Philippines, and that the entry of
U.S. contractors (who had not been mentioned in the 1998 VFA) do not contradict the
obligations found in the 1998 VFA.
The ponencia further notes that the U.S. contractors had been expressly excluded from the
definition of U.S. personnel and U.S. forces, in line with their definitions in the 1998 VFA. 243
They are not entitled to the same privileges that U.S. Personnel and U.S. forces enjoy under
the 1998 VFA, but would have to comply with Philippine law to enter the Philippines.
The ponencia proceeds to argue that the lack of dissimilarities between the 1998 VFA and
the EDCA point to the conclusion that the EDCA implements the 1998 VFA. By limiting the
entry of persons under the EDCA to the categories under the 1998 VFA, the EDCA merely
implements what had already been agreed upon under the 1998 VFA. The U.S. forces's
authorization to perform activities under the EDCA does not change the nature of the EDCA
as the 1998 VFA's implementing agreement, as the term "joint exercises" under the 1998
VFA denotes a wide range of activities that include the additional activities under the EDCA.
That the 1998 VFA and the EDCA are not dissimilar in terms of their treatment of U.S. forces
and U.S. personnel, does not automatically mean that the EDCA simply implements the 1998
VFA, given the additional obligations that the EDCA introduces for the Philippine government.
As earlier discussed, the EDCA introduces military bases in the Philippines within the concept
of the 1987 Constitution, and it is in light of these additional obligations that the EDCA's
affirmation of the 1998 VFA should be viewed: the EDCA adds new dimensions to the
treatment of U.S. Personnel and U.S. forces provided in the 1998 VFA, and these
dimensions cannot be ignored in determining whether the EDCA merely implements
the 1998 VFA.
Thus, while the EDCA affirms the treatment of U.S. personnel and U.S. forces in the
Philippines, it at the same time introduces the Philippines' obligation to recognize the
authority of U.S. Forces in the "Agreed Locations." Under the EDCA, U.S. forces can now
preposition and store defense equipment, supplies, and materiel at Agreed Locations. They
shall have unimpeded access to Agreed Locations for all matters relating to the
prepositioning and storage of defense equipment, supplies, and materiel. Lastly, the EDCA
authorizes the U.S. forces to exercise all rights and authorities within the Agreed
Locations that are necessary for their operational control or defense. In contrast, the 1998
VFA only refers to the tax and duty-free entry of U.S. Government equipment in connection
with the activities during their visit.
In the same manner, and despite being in a different class as U.S. personnel and U.S. forces,
U.S. contractors are also allowed "unimpeded access" to the Agreed Locations when it
comes to all matters relating to the prepositioning and storage of defense equipment,
supplies and materiel.
Thus, these groups of people (U.S. personnel, U.S. forces and U.S. contractors) have been
referred to in the EDCA not merely to implement the 1998 VFA, but to further their roles in the
Agreed Locations that the EDCA authorizes.
From these perspectives, the EDCA cannot be considered to be a simple implementation of
the 1998 VFA. Rather, it is a continuation of the 1998 VFA under new dimensions. These
dimensions should not and cannot be hidden behind reaffirmations of existing 1998 VFA
obligations. These added dimensions reinforce the idea of military bases, as it allows them
access to the Agreed Locations that, as I had earlier mentioned, is the cornerstone of the
EDCA. From the legal end, the obligations under the EDCA, not its policy declarations
and characterization, should be decisive in determining whether Section 25, Article XVIII
applies.
Lastly, even assuming that the EDCA is an implementation of the 1951 MDT and the 1998
VFA, the practice of the Government reveals that even when an agreement is considered as
an implementation of a prior treaty, the concurrence of the Senate must still be sought.
Early in the Senate deliberations on the 1998 VFA, the senator-sponsors characterized it
merely as a subsidiary or implementing agreement to the 1951 MDT.244 Nevertheless,
Senator Tatad, one of the 1998 VFA's co-sponsors, recognized that Article XVIII, Section 25
of the Constitution prohibits the 1998 VFA from being executed as a mere executive
agreement,245 for which reason it was sent to the Senate for concurrence.
The senators agreed during the deliberations that an agreement implementing the 1951 MDT
requires Senate concurrence.246 This is because the agreement, despite implementing or
affirming the 1951 MDT, allows the entry of U.S. troops in the Philippines, a matter covered
by Article XVIII, Section 25 of the Constitution.
Indeed, the 1998 VFA has been consistently treated as an implementation of the 1951 MDT.
Nevertheless, the Government correctly chose to enter into the international agreement in the
form of a treaty duly concurred in by the Senate, because it involves the entry of foreign
military troops independent of, and in addition to, the general agreements in the 1951 MDT.
In the same manner, the EDCA, which purportedly implements and complements both the
1951 MDT and the 1998 VFA, should have likewise been submitted to the Senate for its
concurrence because of the new obligations it introduces.
To reiterate, the EDCA allows for a more permanent presence of U.S. troops and military
equipment in the Philippines (akin to establishing a base), which was not contemplated under
the 1998 VFA. Thus, despite having been treated as an implementation of the 1951 MDT and
the 1998 VFA, the new obligations under the EDCA calls for the application of Article XVIII,
Section 25 of the Constitution and its submission to the Senate for concurrence.
V.E. The EDCA: the Actual and Operational View
As my last point, let me just say that the ponencia can engage in a lot of rationalizations
and technical distinctions on why the EDCA provisions do not amount to or equate with the
operation of military bases and the introduction of troops and facilities into the Philippines.
The ponencia cannot escape the conclusion that translated to actual operational
reality:chanRoblesvirtualLawlibrary
1. The activities described in the EDCA are no different from the operation of a military
base in the 1947 sense, except that under the current U.S. strategy, a fixed base in the
1947 sense is hardly ever established because the expenses and administrative
problems accompanying a fixed base can now be avoided. A military "facility" can very
well serve the same purposes as a fixed military base under current technological
advances in weaponry, transportation, and communications. 247 The U.S. can achieve
the same results at less expense and with lesser problems if it would have guaranteed
access to and control of specified areas such as the Agreed Locations that the EDCA
conveniently provides.
FOSs or CSLs, as defined above, are expandable "warm facilities" maintained with
limited U.S. military support presence and possibly prepositioned equipment.248 FOSs
will support rotational rather than permanently stationed forces, and will be a focus for
bilateral and regional training and for the deployment of troops and stored and
prepositioned equipment, supplies, and materiel.249
As has already been mentioned, examples include the Sembawang port facility in
Singapore and Soto Cano Air Base in Honduras. The Philippines will soon follow
without the consent of the Filipino people and against the constitutional standards they
set, if EDCA would be enforced without the benefit of Senate concurrence.
2. Under the "pivot to Asia strategy," the operative word is "presence" which means ready
access to equipment, supplies, and materiel by troops who can be ferried from safer
locations and immediately be brought to the scene of action from the Agreed Locations.
The EDCA provides such presence through the Agreed Locations; the access to these
secured locations; the prepositioning and storage of defense (read as "military")
equipment, supplies, and materiel; and the forward jump-off point for the deployment of
troops to whatever scene of action there may be that Philippine locations may serve
best.
3. From the point of view of "troops" that Article XVIII, Section 25 likewise regulates
through Senate concurrence, note that in the EDCA, contractual employees are
mentioned together or side-by- side with the military. This is a relatively recent
development where contractual employees are used to provide the same services
and serve hand in hand or as replacement or to augment regular military forces. The
U.S. has put these contractual employees to good use in various local theaters of
conflict, notably in Iraq, Afghanistan and Syria. 250 The U.S. has reportedly resorted to
the use, not only of regular military forces, but of contractual employees who may
provide the same services as military forces and who can increase their numbers
without alerting the U.S. public to the actual number of troops maintained.
VI. CONCLUSION AND THE QUESTION OF
REMEDY
Based on all the above considerations, I conclude that the EDCA, instead of being in
implementation of the 1951 MDT and the 1998 VFA, is significantly broader in scope than
these two treaties, and effectively added to what the 1951 MDT and the 1998 VFA provide.
The EDCA is thus a new agreement that touches on military bases, troops, and facilities
beyond the scope of the 1951 MDT and the 1998 VFA, and should be covered by a treaty
pursuant to Article XVIII, Section 25 and Article VII, Section 21, both of the 1987 Constitution.
Without the referral and concurrence by the Senate, the EDCA is constitutionally deficient
and, hence, cannot be enforced in our country.
To remedy the deficiency, the best recourse RECOMMENDED TO THE COURT under the
circumstances is for the Court to suspend the operations of its rules on the finality of its
rulings and for the Court to give the President ninety (90) days from the service of its
Decision, whether or not a motion for reconsideration is filed, the OPTION to refer the
EDCA to the Senate for its consideration and concurrence.
The referral to the Senate shall serve as a main or supplemental motion for reconsideration'
that addresses the deficiency, rendering the effects of the Court's Decision moot and
academic. Otherwise, the conclusion that the President committed grave abuse of discretion
by entering into an executive agreement instead of a treaty, and by certifying to the
completeness of Philippine internal process, shall be fully effective.
As my last point, we must not forget that the disputed executive agreement that the
President entered into is with the Americans from whom we trace the roots of our
present Constitution. The Americans are a people who place the highest value in their
respect for their Constitution. This should be no less than the spirit that should move
us in adhering to our own Constitution. To accord a lesser respect for our own
Constitution is to invite America's disrespect for the Philippines as a co-equal
sovereign and independent nation.
DISSENTING OPINION
"Para kayong mga birhen na naniniwala sapag-ibig ng isangputa!"1
- Heneral Luna kina Pedro Paterno, Felix Buencamino, at
Emilio Aguinaldo noong sinabi nila na nangako ang mga Amerikano
na kikilalanin nila ang kasarinlan ng mga Pilipino
LEONEN, J.:
1987 Constitution, Article XVIII, 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.cralawlawlibrary
In a disturbing turn of events, the majority of this court just succeeded in amending this
constitutional provision. At the very least, it emasculated its text and weakened its spirit.
An agreement signed by our Secretary of Defense and the Ambassador of the United States
that grants United States military personnel and their contractors operational control over
unspecified locations within Philippine territory in order to pre-position military equipment as
well as to use as launching pads for operations in various parts of the globe is not binding
until it is concurred in by the Senate. This is in accordance with Article XVIII, Section 25 and
Article VII, Section 21 of the Constitution.
Furthermore, the Enhanced Defense Cooperation Agreement (EDCA) does not simply
implement the Agreement Between the Government of the United States of America and the
Government of the Republic of the Philippines Regarding the Treatment of United States
Armed Forces Visiting the Philippines (Visiting Forces Agreement or VFA). The EDCA
substantially modifies or amends the VFA. An executive agreement cannot amend a treaty.
Nor can any executive agreement amend any statute, most especially a constitutional
provision.
The EDCA substantially modifies or amends the VFA in the following
aspects:chanRoblesvirtualLawlibrary
First, the EDCA does not only regulate the "visits" of foreign troops. It also allows the
temporary stationing on a rotational basis of US military personnel and their contractors in
physical locations with permanent facilities and pre-positioned military materiel.
Second, unlike the VFA, the EDCA allows pre-positioning 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.
Third, the VFA contemplates the entry of troops for various training exercises. The EDCA
allows our territory to be used by the United States to launch military and paramilitary
operations to be conducted within our territory or against targets in other states.
Fourth, the EDCA introduces the following concepts not contemplated in the VFA or in the
1951 Mutual Defense Treaty, namely: (a) agreed locations; (b) contractors; (c) pre-positioning
of military materiel; and (d) operational control.
Lastly, the VFA does not have provisions that may be construed as a restriction or
modification of obligations found in existing statutes. The EDCA contains provisions that may
affect various statutes, including (a) the jurisdiction of courts, (b) local autonomy, and (c)
taxation.
There is no showing that the new matters covered in the EDCA were contemplated by the
Senate when it approved the VFA. Senate Resolution No. 105, Series of 2015, which
expresses the sentiment of that legislative chamber, is a definite and unequivocal articulation
of the Senate: the VFA was not intended to cover the matters now included in the EDCA. In
the view of the Senate reading the same provisions of the Constitution as we do, the EDCA
should be in treaty form.
The EDCA, in its current form, is only an official and formal memorial of agreed provisions
resulting from the negotiations with the United States. The President has the discretion to
submit the agreement to the Senate for concurrence. The EDCA is a treaty and requires
Senate concurrence.
 I Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
The EDCA should comply with Article XVIII, Section 25 of the Constitution.
Bayan v. Zamora2 interpreted the scope of this provision when it discussed the
constitutionality of the VFA. Similar to the EDCA, the VFA was a product of negotiations
between the two governments relating to mutual security interests. Unlike the EDCA,
however, the VFA was submitted to the Senate for concurrence,
thus:chanRoblesvirtualLawlibrary
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 [in] a final series of conferences and negotiations 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.
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo
Zamora, officially transmitted to the Senate of the Philippines, the Instrument of Ratification,
the letter of the President 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 Bias F. Ople, and its Committee on National Defense and
Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and
recommendation. Thereafter, joint public hearings were held by the two Committees.
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443
recommending the concurrence of the Senate to the VFA and the creation of a Legislative
Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a
two-thirds (2/3) vote of its members. Senate Resolution No. 443 was then re-numbered as
Senate Resolution No. 18.
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between
respondent Secretary Siazon and United States Ambassador Hubbard. 3 (Citations
omitted)cralawlawlibrary
Bayan held that Article XVIII, Section 25 of the Constitution applies to the
VFA:chanRoblesvirtualLawlibrary
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.
....
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.
....
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. 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, is to accord strict meaning to the
phrase.4cralawlawlibrary

Lim v. Executive Secretary5 further explored the scope of the VFA as it dealt with the
constitutionality of the Terms of Reference of the "Balikatan 02-1" joint military exercises
between the Philippines and the United States:chanRoblesvirtualLawlibrary
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 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.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the
terms of the VFA, what may US forces legitimately do in furtherance of their aim to provide
advice, assistance and training in the global effort against terrorism? Differently phrased, may
American troops actually engage in combat in Philippine territory? The Terms of Reference
are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not
engage in combat "except in self-defense." We wryly note that this sentiment is admirable in
the abstract but difficult in implementation. The target of "Balikatan 02-1," the Abu Sayyaf,
cannot reasonably be expected to sit idly while the battle is brought to their very doorstep.
They cannot be expected to pick and choose their targets for they will not have the luxury of
doing so. We state this point if only to signify our awareness that the parties straddle a fine
line, observing the honored legal maxim "Nemo potest facere per alium quod non potest
facere per directum." The indirect violation is actually petitioners' worry, that in reality,
"Balikatan 02-1" is actually a war principally conducted by the United States government, and
that the provision on self-defense serves only as camouflage to conceal the true nature of the
exercise. A clear pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an
offensive war on Philippine territory.6 (Emphasis supplied)cralawlawlibrary
Nicolas v. Romulo7 involved the grant of custody of Lance Corporal Daniel Smith to the
United States pursuant to the VFA and reiterated the ruling in
Bayan:chanRoblesvirtualLawlibrary
[A]s an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary
to submit the VFA to the US Senate for advice and consent, but merely to the US Congress
under the Case-Zablocki Act within 60 days of its ratification. It is for this reason that the US
has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty,
and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution.8cralawlawlibrary
The controversy now before us involves more than the VFA. Reading the entirety of the
Constitution is necessary to fully appreciate the context of the interpretation of Article XVIII,
Section 25.
II
Foreign policy indeed includes security alliances and defense cooperation among states. In
the conduct of negotiations and in the implementation of any valid and binding international
agreement, Article II of the Constitution requires:chanRoblesvirtualLawlibrary
Section 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
....
Section 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.cralawlawlibrary
Article 2(4) of the Charter of the United Nations similarly provides that "[a] 11 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."9
Our use of force is not completely proscribed as the Charter of the United Nations provides
for the inherent right of individual or collective self-defense:chanRoblesvirtualLawlibrary
CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF
THE PEACE, AND ACTS OF AGGRESSION
....
Article 51. Nothing in the present Charter shall impair the inherent right of individual or
collective self-defen[s]e if an armed attack occurs against a Member of the United Nations,
until the Security Council has taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of self-defen[s]e shall be
immediately reported to the Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore international peace and
security.10cralawlawlibrary
Furthermore, falling within the penumbra on the use of force are pre-emptive self-defense,11
self-help, and humanitarian interventions.12
Another exception would be the collective security system set up under the Charter of the
United Nations, with the Security Council acting in accordance with Chapter VII of the
Charter. Under Article 42:chanRoblesvirtualLawlibrary
Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land
forces as may be necessary to maintain or restore international peace and security. Such
action may include demonstrations, blockade, and other operations by air, sea, or land forces
of Members of the United Nations.13cralawlawlibrary
We fall within this exception when we participate in the enforcement of the resolutions of the
Security Council.14
Generally, the President's discretion is plenary in matters falling within executive functions.
He is the chief executive,15 having the power of control over all executive departments,
bureaus, and offices.16 Further, "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 [and] [i]n many ways, the President is the chief architect of the nation's foreign
policy."17
The President is also the Commander-in-Chief of all armed forces of the Philippines.18 He has
the power to "call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion . . . suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law"19 subject to the conditions and requisites under the provision.
However, the President's discretion to allow our participation in the use of force—whether by
committing our own military assets and personnel or by allowing our territory to be used as
waypoints, refueling or staging areas—is also constrained by the Constitution. In this sense,
the power of the President as Commander-in-Chief and head of state is limited by the
sovereign through judicially determinable constitutional parameters.
III
With respect to the use of or threat to use force, we can discern a gradation of interrelations
of the legislative and executive powers to ensure that we pursue "an independent foreign
policy" in the context of our history.
Article VI, Section 23 of the Constitution covers declarations of a state of war. It is vested
solely in Congress, thus:chanRoblesvirtualLawlibrary
Section 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a state of
war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment
thereof.cralawlawlibrary
Informed by our history and to ensure that the independence of our foreign policy is not
compromised by the presence of foreign bases, troops, or facilities, the Constitution now
provides for treaty recognition, Senate concurrence, and public ratification when required by
Congress through Article XVIII, Section 25, thus:chanRoblesvirtualLawlibrary
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.cralawlawlibrary
The prohibition in Article XVIII, Section 25 relates only to international agreements involving
foreign military bases, troops, or facilities. It does not prohibit the President from entering into
other types of agreements that relate to other aspects of his powers as Commander-in-Chief.
In Bayan:chanRoblesvirtualLawlibrary
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.
....
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. 20 (Emphasis
supplied)cralawlawlibrary
"Foreign military bases, troops, and facilities" should not be read together but separately.
Again, in Bayan:chanRoblesvirtualLawlibrary
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 hermeneutics that when no distinction is made by law, the Court
should not distinguish—Ubi lex non distinguit nee 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 or 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, 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:chanRoblesvirtualLawlibrary
"MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the three—
bases, troops or facilities—or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three,
the requirements 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."cralawlawlibrary
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.21 (Citations omitted)cralawlawlibrary
The ponencia, among others, interprets "shall not be allowed" as being limited to the "initial
entry" of bases, troops, or facilities.22 Subsequent acts are treated as no longer being subject
to Article XVIII, Section 25 and are, therefore, only limited by other constitutional provisions
and relevant laws.23
This interpretation is specious and ahistorical.
There is nothing in Article XVIII, Section 25 that defines the extent and scope of the presence
of foreign military bases, troops, or facilities, thereby justifying a distinction between their
initial entry and subsequent activities. Its very structure shows that Article XVIII, Section 25 is
not a mere gateway for the entry of foreign troops or facilities into the Philippines for them to
carry out any activity later on.
The provision contains measures designed to protect our country in the broader scheme of
international relations. Military presence shapes both foreign policy and political relations.
War—or the threat thereof through the position of troops, basing, and provision of military
facilities—is an extension of politic, thus:chanRoblesvirtualLawlibrary
The use of military force is a means to a higher end—the political object. War is a tool that
policy uses to achieve its objectives and, as such, has a measure of rational utility. So, the
purpose for which the use of force is intended will be the major determinant of the course and
character of a war. As Clausewitz explains, war "is controlled by its political object," which
"will set its course, prescribe the scale of means and effort which is required, and makes its
influence felt throughout down to the smallest operational detail.24cralawlawlibrary

With respect to the entry and presence of foreign military bases, troops, and facilities, Article
XVIII, Section 25 of the 1987 Constitution enables government to politically negotiate with
other states from a position of equality. The authority is not exclusively granted to the
President. It is shared with the Congress. The Senate participates because no foreign base,
troop, or facility may enter unless it is authorized by a treaty.
There is more evidence in the text of the provision of a sovereign intent to require conscious,
deliberate, and public discussion regarding these issues.
The provision gives Congress, consisting of the Senate and the House of Representatives,
the option to require that the treaty become effective only when approved by a majority of the
people in a referendum. Furthermore, there is the additional requirement that the authority will
be absent if the other state does not treat the same instrument that allows their bases, troops,
and facilities to enter our territory as a treaty.
The provision ensures equality by requiring a higher level of public scrutiny. Unlike in the past
when we bargained with the United States from a position of weakness, the Constitution
opens the legislative forum so that we use the freedoms that we have won since 1946 to
ensure a fair agreement. Legislative hearings make the agreements more publicly legible.
They allow more criticism to be addressed. Public forums clarify to the United States and
other foreign military powers interested in the Philippines the full extent of interest and the
various standpoints of our different constituents. As a mechanism of public participation, it
also assures our treaty partners of the durability of the various obligations in these types of
security arrangements.
The EDCA was negotiated in private between representatives of the President and the United
States. The complete text of the negotiations was presented to the public in time for the visit
of the President of the United States. During its presentation, the President's representatives
took the position that no further public discussion would be held that might affect the terms of
the EDCA. The President presented the EDCA as a final product withdrawn from Senate or
Congressional input. The President curtailed even the possibility of full public participation
through a Congressional Resolution calling for a referendum on this matter.
The Separate Opinion of former Chief Justice Puno in Bayan provides a picture of how the
Constitutional Commission recognized the lopsided relationship of the United States and the
Philippines despite the 1951 Mutual Defense Treaty and the 1947 Agreement Between the
United States of America and the Republic of the Philippines Concerning Military Bases
(1947 Military Bases Agreement):chanRoblesvirtualLawlibrary
To determine compliance of the VFA with the requirements of Sec. 25, Art. XVIII of the
Constitution, it is necessary to ascertain the intent of the framers of the Constitution as
well as the will of the Filipino people who ratified the fundamental law. This exercise
would inevitably take us back to the period in our history when U.S. military presence
was entrenched in Philippine territory with the establishment and operation of U.S.
Military Bases in several parts of the archipelago under the 1947 R.P.-U.S. Military
Bases Agreement. As articulated by Constitutional Commissioner Bias F. Ople in the 1986
Constitutional Commission deliberations on this provision, the 1947 RP-US Military Bases
Agreement was ratified by the Philippine Senate, but not by the United States Senate.
In the eyes of Philippine law, therefore, the Military Bases Agreement was a treaty, but
by the laws of the United States, it was a mere executive agreement. This asymmetry in
the legal treatment of the Military Bases Agreement by the two countries was believed
to be a slur to our sovereignty. Thus, in the debate among the Constitutional
Commissioners, the unmistakable intention of the commission emerged that this anomalous
asymmetry must never be repeated. To correct this historical aberration, Sec. 25, Art.
XVIII of the Constitution requires that the treaty allowing the presence of foreign
military bases, troops, and facilities should also be "recognized as a treaty by the
other contacting party." In plain language, recognition of the United States as the other
contracting party of the VFA should be by the U.S. President with the advice and consent of
the U.S. Senate.
The following exchanges manifest this intention:
"MR. OPLE. Will either of the two gentlemen yield to just one question for clarification? Is
there anything in this formulation, whether that of Commissioner Bernas or of Commissioner
Romulo, that will prevent the Philippine government from abrogating the existing bases
agreement?
FR. BERNAS. To my understanding, none.
MR. ROMULO. I concur with Commissioner Bernas.
MR. OPLE. I was very keen to put this question because I had taken the position from the
beginning — and this is embodied in a resolution filed by Commissioners Natividad,
Maambong and Regalado — that it is very important that the government of the Republic of
the Philippines be in a position to terminate or abrogate the bases agreement as one of the
options . . . . we have acknowledged starting at the committee level that the bases agreement
was ratified by our Senate; it is a treaty under Philippine law. But as far as the Americans are
concerned, the Senate never took cognizance of this and therefore, it is an executive
agreement. That creates a wholly unacceptable asymmetry between the two countries.
Therefore, in my opinion, the right step to take, if the government of our country will deem it in
the national interest to terminate this agreement or even to renegotiate it, is that we must
begin with a clean slate; we should not be burdened by the flaws of the 1947 Military Bases
Agreement. . .
MR. ROMULO. Madam President, I think the two phrases in the Bernas formulation take care
of Commissioner Ople's concerns.
The first says "EXCEPT UNDER THE TERMS OF A TREATY." That means that if it is to be
renegotiated, it must be under the terms of a new treaty. The second is the concluding phrase
which says: "AND RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE."
....
MR. SUAREZ. Is the proposal prospective and not retroactive in character?
FR. BERNAS. Yes, it is prospective because it does not touch the validity of the present
agreement. However, if a decision should be arrived at that the present agreement is invalid,
then even prior to 1991, this becomes operative right away.
MR. SUAREZ. In other words, we do not impress the previous agreements with a valid
character, neither do we say that they are null and void ab initio as claimed by many of us
here.
FR. BERNAS. The position I hold is that it is not the function of this Commission to pass
judgment on the validity or invalidity of the subsisting agreement.
MR. SUAREZ ... the proposal requires recognition of this treaty by the other contracting
nation. How would that recognition be expressed by that other contracting nation? That is in
accordance with their constitutional or legislative process, I assume.
FR. BERNAS. As Commissioner Romulo indicated, since this certainly would refer only to the
United States, because it is only the United States that would have the possibility of being
allowed to have treaties here, then we would have to require that the Senate of the United
States concur in the treaty because under American constitutional law, there must be
concurrence on the part of the Senate of the United States to conclude treaties.
FR. BERNAS. When I say that the other contracting state must recognize it as a treaty, by
that I mean it must perform all the acts required for the agreement to reach the status of a
treaty under their jurisdiction"25 (Emphasis supplied)
cralawlawlibrary
By allowing the entry of United States military personnel, their deployment into undefined
missions here and abroad, and their use of military assets staged from our territory against
their present and future enemies based on a general provision in the VFA, the majority now
undermines the measures built into our present Constitution to allow the Senate, Congress
and our People to participate in the shaping of foreign policy. The EDCA may be an
agreement that "deepens defense cooperation"26 between the Philippines and the United
States. However, like the 1947 Military Bases Agreement, it is the agreement more than any
other that will extensively shape our foreign policy.
IV
Article VII, Section 21 of the Constitution complements Article XVIII, Section 25 as it provides
for the requisite Senate concurrence, thus:chanRoblesvirtualLawlibrary
Section 21. 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.cralawlawlibrary
The provision covers both "treaty and international agreement." Treaties are traditionally
understood as international agreements entered into between states or by states with
international organizations with international legal personalities.27 The deliberate inclusion of
the term "international agreement" is the subject of a number of academic discussions
pertaining to foreign relations and international law. Its addition cannot be mere surplus.
Certainly, Senate concurrence should cover more than treaties.
That the President may enter into international agreements as chief architect of the
Philippines' foreign policy has long been acknowledged.28 However, whether an international
agreement is to be regarded as a treaty or as an executive agreement depends on the
subject matter covered by and the temporal nature of the agreement.29Commissioner of
Customs v. Eastern Sea Trading30 differentiated international agreements that require Senate
concurrence from those that do not:chanRoblesvirtualLawlibrary
International agreements involving political issues or changes of national policy and those
involving international arrangements of a permanent character usually take the form of
treaties. But international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a more or
less temporary nature usually take the form of executive agreements.31 (Emphasis in the
original)cralawlawlibrary
Indeed, the distinction made in Commissioner of Customs in terms of international
agreements must be clarified depending on whether it is viewed from an international law or
domestic law perspective. Dean Merlin M. Magallona summarizes the differences between
the two perspectives:chanRoblesvirtualLawlibrary
From the standpoint of Philippine constitutional law, a treaty is to be distinguished from an
executive agreement, as the Supreme Court has done in Commissioner of Customs v.
Eastern Sea Trading where it declares that "the concurrence of [the Senate] is required by
our fundamental law in the making of 'treaties' . . . which are, however, distinct and different
from 'executive agreements,' which may be validly entered into without such concurrence."
Thus, the distinction rests on the application of Senate concurrence as a constitutional
requirement.
However, from the standpoint of international law, no such distinction is drawn. Note that for
purposes of the Vienna Convention on the Law of Treaties, in Article 2(1)(a) the term "treaty"
is understood 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." . . . The Philippines is a party to
the Convention which is already in force. In the use of the term "treaty," Article 2(1 )(a) of the
Vienna Convention on the Law of Treaties between States and International Organizations,
which is not yet in force, the designation or appellation of the agreement also carries no legal
significance. Provided the instruments possess the elements of an agreement under
international law, they are to be taken equally as "treaty" without regard to the descriptive
names by which they are designated, such as "protocol," "charter," "covenant," "exchange of
notes," "modus vivendi," "convention," or "executive agreement."32 (Emphasis supplied,
citations omitted)cralawlawlibrary
Under Article 2(2)33 of the Vienna Convention on the Law of Treaties, in relation to Article 2(1
)(a),34 the designation and treatment given to an international agreement is subject to the
treatment given by the internal law of the state party. 35 Paragraph 2 of Article 2 specifically
safeguards the states' usage of the terms "treaty" and "international agreement" under their
internal laws.36
Within the context of our Constitution, the requirement for Senate concurrence in Article VII,
Section 21 of the Constitution connotes a special field of state policies, interests, and issues
relating to foreign relations that the Executive cannot validly cover in an executive
agreement:chanRoblesvirtualLawlibrary
As stated above, an executive agreement is outside the coverage of Article VII, Section 21 of
the Constitution and hence not subject to Senate concurrence. However, the demarcation line
between a treaty and an executive agreement as to the subject-matter or content of their
coverage is ill-defined. The courts have not provided reliable guidelines as to the scope of
executive-agreement authority in relation to treaty-making power.
If executive-agreement authority is un-contained, and if what may be the proper subject-
matter of a treaty may also be included within the scope of executive-agreement power, the
constitutional requirement of Senate concurrence could be rendered meaningless. The
requirement could be circumvented by an expedient resort to executive agreement.
The definite provision for Senate concurrence in the Constitution indomitably signifies that
there must be a regime of national interests, policies and problems which the Executive
branch of the government cannot deal with in terms of foreign relations except through
treaties concurred in by the Senate under Article VII, Section 21 of the Constitution. The
problem is how to define that regime, i.e., that which is outside the scope of executive-
agreement power of the President and which exclusively belongs to treaty-making as subject
to Senate concurrence.37 (Emphasis supplied)cralawlawlibrary
Thus, Article VII, Section 21 may cover some but not all types of executive agreements.
Definitely, the determination of its coverage does not depend on the nomenclature assigned
by the President.
Executive agreements are international agreements that pertain to mere adjustments of
detail that carry out well-entrenched national policies and traditions in line with the functions
of the Executive. It includes enforcement of existing and valid treaties where the provisions
are clear. It involves arrangements that are of a temporary nature. More importantly, it does
not amend existing treaties, statutes, or the Constitution.
In contrast, international agreements that are considered treaties under our Constitution
involve key political issues or changes of national policy. These agreements are of a
permanent character. It requires concurrence by at least two-thirds of all the members of the
Senate.
Even if we assume that the EDCA's nomenclature as an "executive agreement" is correct, it
is still the type of international agreement that needs to be submitted to the Senate for
concurrence. It involves a key political issue that substantially alters or reshapes our national
and foreign policy.
Fundamentally however, the President's classification of the EDCA as a mere "executive
agreement" is invalid. Article XVIII Section 25 requires that the presence of foreign troops,
bases, and facilities must be covered by an internationally binding agreement in the form of a
treaty concurred in by the Senate.
V
The Solicitor General, on behalf of government, proposes that we should view the EDCA
merely as an implementation of both the Mutual Defense Treaty and the VFA. In his view,
since both the Mutual Defense Treaty and the VFA have been submitted to the Senate and
concurred in validly under the governing constitutional provisions at that time, there is no
longer any need to have an implementing agreement similarly submitted for Senate
concurrence.
The Chief Justice, writing for the majority of this court, agrees with the position of the Solicitor
General.
I disagree.
The proposal of the Solicitor General cannot be accepted for the following reasons: (1) the
Mutual Defense Treaty, entered into in 1951 and ratified in 1952, cannot trump the
constitutional provision Article XVIII, Section 25; (2) even the VFA, which could have been
also argued as implementing the Mutual Defense Treaty, was presented to the Senate for
ratification; (3) the EDCA contains significant and material obligations not contemplated by
the VFA; and (4) assuming arguendo that the EDCA only provides the details for the full
implementation of the VFA, Article XVIII, Section 25 still requires that it at least be submitted
to the Senate for concurrence, given the history and context of the constitutional provision.
VI
The 1951 Mutual Defense Treaty cannot be the treaty contemplated in Article XVIII, Section
25. Its implementation through an executive agreement, which allows foreign military bases,
troops, and facilities, is not enough. If the Mutual Defense Treaty is the basis for the EDCA as
a mere executive agreement, Article XVIII, Section 25 of the Constitution will make no sense.
An absurd interpretation of the Constitution is no valid interpretation.
The Mutual Defense Treaty was entered into by representatives of the Philippines and the
United States on August 30, 1951 and concurred in by the Philippine Senate on May 12,
1952. The treaty acknowledges that this is in the context of our obligations under the Charter
of the United Nations. Thus, Article I of the Mutual Defense Treaty
provides:chanRoblesvirtualLawlibrary
The Parties undertake, as set forth in the Charter of the United Nations, to settle any
international disputes in which they may be involved by peaceful means in such a manner
that international peace and security and justice are not endangered and to refrain in their
international relations from the threat or use of force in any manner inconsistent with the
purposes of the United Nations.cralawlawlibrary
Further, the treaty expresses the desire of the parties to "maintain and develop their
individual and collective capacity to resist armed attack." Thus, in Article III of the
Treaty:chanRoblesvirtualLawlibrary
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.cralawlawlibrary
While these provisions in the 1951 Mutual Defense Treaty could reasonably be interpreted to
include activities done jointly by the Philippines and the United States, nothing in International
Law nor in the Constitution can be reasonably read as referring to this treaty for the
authorization for "foreign military bases, troops, or facilities" after the ratification of the 1987
Constitution.
Again, the constitutional provision reads:chanRoblesvirtualLawlibrary
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. (Emphasis supplied)cralawlawlibrary
There is a time stamp to the obligation under this provision. The prohibition against "foreign
military bases, troops, or facilities," unless covered by treaty or allowed through a
referendum, becomes effective "after the expiration in 1991 of the Agreement . . . concerning
Military Bases." The treaty about to expire refers to the 1947 Military Bases Agreement as
amended. This was still in effect at the time of the drafting, submission, and ratification of the
1987 Constitution.
The constitutional timeline is unequivocal.
The 1951 Mutual Defense Treaty was in effect at the time of the ratification of the Constitution
in 1987. It was also in effect even after the expiration of the Military Bases Agreement in
1991. We could reasonably assume that those who drafted and ratified the 1987 Constitution
were aware of this legal situation and of the broad terms of the 1951 treaty yet did not
expressly mention the 1951 Mutual Defense Treaty in Article XVIII, Section 25. We can
conclude, with sturdy and unassailable logic, that the 1951 treaty is not the treaty
contemplated in Article XVIII, Section 25.
Besides, the Executive also viewed the VFA as an implementation of the 1951 Mutual
Defense Treaty. Yet, it was still submitted to the Senate for concurrence.
Parenthetically, Article 62 of the Vienna Convention on the Law of Treaties 38 provides for the
principle of "rebus sic stantibus," in that a fundamental change of circumstances may be a
ground to terminate or withdraw from a treaty.39 Dean Merlin M. Magallona is of the view that
there has been a fundamental change in circumstances that allows the Philippines to
terminate the 1951 Mutual Defense Treaty.40 Although we should acknowledge this
suggestion during the oral arguments by petitioners, we do not need to go into such an issue
and at this time to be able to resolve the controversies in this case. We await a case that will
provide a clearer factual backdrop properly pleaded by the parties.
In addition, the Mutual Defense Treaty is not the treaty contemplated by Article XVIII, Section
25 on account of its subject matter. In Paragraph 5 of its Preamble, the Mutual Defense
Treaty articulates the parties' desire "to strengthen their present efforts to collective defense
for the preservation of peace and security pending the development of a more
comprehensive system of regional security in the Pacific Area." Article II further clarifies the
treaty's purpose:chanRoblesvirtualLawlibrary
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. (Emphasis supplied)cralawlawlibrary
Clearly, none of its provisions provide specifically for the presence of a base, troops, or
facilities that will put it within the ambit of Article XVIII, Section 25. Its main aim is to provide
support against state enemies effectively and efficiently. Thus, for instance, foreign military
bases were covered in the 1947 Military Bases Agreement.
The VFA cannot also be said to be the treaty required in Article XVIII, Section 25. This is
because the United States, as the other contracting party, has never treated it as such under
its own domestic laws. The VFA has the same status as that of the 1947 Military Bases
Agreement in that it is merely an executive agreement on the part of United
States:chanRoblesvirtualLawlibrary
As articulated by Constitutional Commissioner Bias F. Ople in the 1986 Constitutional
Commission deliberations on this provision, the 1947 RP-US Military Bases Agreement
was ratified by the Philippine Senate, but not by the United States Senate. In the eyes
of Philippine law, therefore, the Military Bases Agreement was a treaty, but by the laws
of the United States, it was a mere executive agreement. This asymmetry in the legal
treatment of the Military Bases Agreement by the two countries was believed to be a
slur to our sovereignty.41 (Emphasis supplied)cralawlawlibrary
In Nicolas, Associate Justice Antonio T. Carpio himself underscored the non-treaty status of
the Visiting Forces Agreement in light of Medellin v. Texas42 in his Separate Opinion,
thus:chanRoblesvirtualLawlibrary
Under Medellin, the VFA is indisputably not enforceable as domestic federal law in the United
States. On the other hand, since the Philippine Senate ratified the VFA, the VFA constitutes
domestic law in the Philippines. This unequal legal status of the VFA violates Section 25,
Article XVIII of the Philippine Constitution, which specifically requires that a treaty involving
the presence of foreign troops in the Philippines must be equally binding on the Philippines
and on the other contracting State.
In short, the Philippine Constitution bars the efficacy of such a treaty that is enforceable as
domestic law only in the Philippines but unenforceable as domestic law in the other
contracting State. The Philippines is a sovereign and independent State. It is no longer a
colony of the United States. This Court should not countenance an unequal treaty that is not
only contrary to the express mandate of the Philippine Constitution, but also an affront to the
sovereignty, dignity and independence of the Philippine State.
There is no dispute that Section 25, Article XVIII of the Philippine Constitution governs the
constitutionality of the VFA. Section 25 states:chanRoblesvirtualLawlibrary
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.cralawlawlibrary
The clear intent of the phrase "recognized as a treaty by the other contracting State" is to
insure that the treaty has the same legal effect on the Philippines as on the other contracting
State. This requirement is unique to agreements involving the presence of foreign troops in
the Philippines, along with the requirement, if Congress is so minded, to hold a national
referendum for the ratification of such a treaty.
The deliberations of the Constitutional Commission reveal the sensitivity of the framers to the
"unacceptable asymmetry" of the then existing military bases agreement between the
Philippines and the United States. The Philippine Senate had ratified the military bases
agreement but the United States Government refused to submit the same to the U.S. Senate
for ratification. Commissioner Bias Ople explained this "unacceptable asymmetry" in this
manner:chanRoblesvirtualLawlibrary
. . . But I think we have acknowledged starting at the committee level that the bases
agreement was ratified by our Senate; it is a treaty under Philippine law. But as far as the
Americans are concerned, the Senate never took cognizance of this and, therefore, it is
an executive agreement. That creates a wholly unacceptable asymmetry between the
two countries. Therefore, in my opinion, the right step to take, if the government of our
country will deem it in the national interest to terminate this agreement or even to renegotiate
it, is that we must begin with a clean slate; we should not be burdened by the flaws of the
1947 Military Bases Agreement. I think that is a very important point. I am glad to be
reassured by the two Gentlemen that there is nothing in these proposals that will bar the
Philippine government at the proper time from exercising the option of abrogation or
termination.cralawlawlibrary
Eventually, the Constitutional Commission required that any agreement involving the
presence of foreign troops in the Philippines must be "recognized as a treaty by the other
contracting State." This means that the other contracting State must recognize the
agreement as a treaty, as distinguished from any other agreement, and if its constitutional
processes require, submit the agreement to its proper legislative body for ratification as a
treaty. As explained by Commissioner Father Joaquin Bernas, S.J., during the deliberations
of the Constitutional Commission:chanRoblesvirtualLawlibrary
Third, on the last phrase "AND RECOGNIZED AS A TREATY BY THE OTHER
CONTRACTING NATION," we enter into a treaty and we want the other contracting
party to respect that document as a document possessing force in the same way that
we respect it. The present situation we have is that the bases agreement is a treaty as far as
we are concerned, but it is only an executive agreement as far as the United States is
concerned, because the treaty process was never completed in the United States because
the agreement was not ratified by the Senate.
So, for these reasons, I oppose the deletion of this section because, first of all, as I said, it
does not prevent renegotiation. Second, it respects the sovereignty of our people and the
people will be in a better position to judge whether to accept the treaty or not, because then
they will fl be voting not just on an abstraction but they will be voting after examination of the
terms of the treaty negotiated by our government. And third, the requirement that it be
recognized as a treaty by the other contracting nation places us on the same level as
any other contracting party.cralawlawlibrary
The following exchanges in the Constitutional Commission explain further the meaning of the
phrase "recognized as a treaty by the other contracting
State":chanRoblesvirtualLawlibrary
FR. BERNAS: Let me be concrete, Madam President, in our circumstances. Suppose they
were to have this situation where our government were to negotiate a treaty with the United
States, and then the two executive departments in the ordinary course of negotiation come to
an agreement. As our Constitution is taking shape now, if this is to be a treaty at all, it will
have to be submitted to our Senate for its ratification. Suppose, therefore, that what was
agreed upon between the United States and the executive department of the Philippines is
submitted and ratified by the Senate, then it is further submitted to the people for its
ratification and subsequently, we ask the United States: "Complete the process by
accepting it as a treaty through ratification by your Senate as the United States
Constitution requires," would such an arrangement be in derogation of sovereignty?
MR. NOLLEDO: Under the circumstances the Commissioner just mentioned, Madam
President, on the basis of the provision of Section 1 that "sovereignty resides in the Filipino
people," then we would not consider that a derogation of our sovereignty on the basis and
expectation that there was a plebiscite.
xxx xxx xxx
FR. BERNAS: As Commissioner Romulo indicated, since this certainly would refer only to the
United States, because it is only the United States that would have the possibility of being
allowed to have treaties here, then we would have to require that the Senate of the United
States concur in the treaty because under American constitutional law, there must be
concurrence on the part of the Senate of the United States to conclude treaties.
MR. SUAREZ: Thank you for the clarification.
Under the 1935 Constitution, if I recall it correctly, treaties and agreements entered into
require an exchange of ratification. I remember that is how it was worded. We do not have in
mind here an exchange of ratification by the Senate of the United States and by the Senate of
the Philippines, for instance, but only an approval or a recognition by the Senate of the United
States of that treaty.
FR. BERNAS: When I say that the other contracting state must recognize it as a treaty,
by that I mean it must perform all the acts required for that agreement to reach the
status of a treaty under their jurisdiction.cralawlawlibrary
Thus, Section 25, Article XVIII of the Philippine Constitution requires that any agreement
involving the presence of foreign troops in the Philippines must be equally legally binding
both on the Philippines and on the other contracting State. This means the treaty must
be enforceable under Philippine domestic law as well as under the domestic law of the other
contracting State. Even Justice Adolfo S. Azcuna, the ponente of the majority opinion, and
who was himself a member of the Constitutional Commission, expressly admits this when
he states in his ponencia:chanRoblesvirtualLawlibrary
The provision is thus designed to ensure that any agreement allowing the presence of foreign
military bases, troops or facilities in Philippine territory shall be equally binding on the
Philippines and the foreign sovereign State involved. The idea is to prevent a
recurrence of the situation where the terms and conditions governing the presence of
foreign armed forces in our territory were binding on us but not upon the foreign
State.cralawlawlibrary
An "equally binding" treaty means exactly what it says — the treaty is enforceable as
domestic law in the Philippines and likewise enforceable as domestic law in the other
contracting State.43 (Emphasis in the original, citations omitted)cralawlawlibrary
Surprisingly, through his Concurring Opinion in this case, Associate Justice Carpio has now
abandoned his earlier views.
This court's interpretation of a treaty under Article XVIII, Section 25 in Bayan, which did away
with the requirement that the agreement be recognized as a treaty by the other contracting
party, has resulted in an absurd situation of political asymmetry between the United States
and the Philippines. A relationship where both parties are on equal footing must be
demanded, and from one state to another. The Philippine government must be firm in
requiring that the United States establish stability in its international commitment, both by
legislation and jurisprudence.
The doctrine laid down in Bayan, insofar as the VFA is concerned, should now be revisited in
light of new circumstances and challenges in foreign policy and international relations.
VII
Even if we assume that the Mutual Defense Treaty and the VFA are the treaties
contemplated by Article XVIII, Section 25 of the Constitution, this court must determine
whether the EDCA is a valid executive agreement as argued by respondents.
It is not. The EDCA modifies these two agreements.
Respondents claim that the EDCA is an executive agreement and merely implements the
Mutual Defense Treaty and VFA.44 In arguing that the EDCA implements the Mutual Defense
Treaty, respondents state that the latter has two operative principles: (1) the Principle of
Defensive Reaction under Article IV;45 and (2) the Principle of Defensive Preparation under
Article II.46 According to respondents, "[t]he primary concern of the EDCA is the Principle of
Defensive Preparation in order to enhance both parties' abilities, if required, to operationalize
the Principle of Defensive Reaction."47 The specific goals enumerated in the EDCA
demonstrate this:chanRoblesvirtualLawlibrary
56. The specific purposes of the EDCA-to "[s]upport the Parties' shared goal of improving
interoperability of the Parties' forces, and for the Armed Forces of the Philippines ("AFP"), [to
address its] short-term capabilities gaps, promoting long-term modernization, and helping
maintain and develop additional maritime security, maritime domain awareness, and
humanitarian assistance and disaster relief capabilities" properly fall within the MDT's
objective of developing the defense capabilities of the Philippines and the US. The EDCA
implements the MDT by providing for a mechanism that promotes optimal cooperation
between the US and the Philippines.48cralawlawlibrary
Similarly, respondents allege that the EDCA implements the VFA in relation to the entry of
United States troops and personnel, importation and exportation of equipment, materials,
supplies, and other property, and movement of vessels and aircraft in the Philippines.49
Respondents rely on this court's pronouncement in Lim that combat-related activities are
allowed under the VFA:chanRoblesvirtualLawlibrary
61. Article I of the EDCA provides that its purposes are to support "the Parties' shared goal of
improving interoperability of the Parties' forces, and for the Armed Forces of the Philippines
("AFP"), [to address its] short-term capabilities gaps, promoting long-term modernization, and
helping maintain and develop additional maritime security, maritime domain awareness, and
humanitarian assistance and disaster relief capabilities."
62. The Honorable Court in Lim ruled that these activities are already covered by the VFA.
Under Lim, "maritime security, maritime domain awareness, and humanitarian assistance and
disaster relief capabilities" are activities that are authorized to be undertaken in the
Philippines under the VFA.
63. Article II of the EDCA reiterates the definition of "United States personnel" in the VFA
which means "United States military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippines."
64. Article III of the EDCA provides for the "Agreed Locations" where the Philippines
authorizes US 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."
65. Article IV of the EDCA authorizes the prepositioning and storing of defense equipment,
supplies and materiel. Under Article IV in relation to Article III of the EDCA, the
"prepositioning of equipment, supplies and materiel" is an "activity" to be approved by the
Philippine Government "through bilateral security mechanisms, such as the MDB and SEB."
66. In sum, what the EDCA does is to enhance the existing contractual security apparatus
between the Philippines and the US, set up through the MDT and the VFA. It is the duty of
the Honorable Court to allow this security apparatus enough breathing space to respond to
perceived, anticipated, and actual exigencies.cralawlawlibrary
As discussed earlier, an executive agreement merely provides for the detailed adjustments of
national policies or principles already existing in other treaties, statutes, or the Constitution. It
involves only the enforcement of clear and specific provisions of the Constitution, law, or
treaty. It cannot amend nor invalidate an existing statute, treaty, or provision in the
Constitution. It includes agreements that are of a temporary nature.
This is not the case with the EDCA.
The EDCA contains significant and material obligations not contemplated by the VFA. As an
executive agreement, it cannot be given any legal effect. The EDCA substantially modifies
and amends the VFA in at least the following aspects:chanRoblesvirtualLawlibrary
First, the EDCA does not only regulate the "visits" of foreign troops. It allows the temporary
stationing on a rotational basis of United States military personnel and their contractors on
physical locations with permanent facilities and pre-positioned military materiel.
Second, unlike the VFA, the EDCA allows the pre-positioning of military materiel, which can
include various types of warships, fighter planes, bombers, land and amphibious vehicles,
and their corresponding ammunition.
Third, the VFA contemplates the entry of troops for various training exercises. The EDCA
allows our territory to be used by the United States to launch military and paramilitary
operations conducted in other states.
Fourth, the EDCA introduces new concepts not contemplated in the VFA, namely: (a) agreed
locations; (b) contractors; (c) pre-positioning of military materiel; and (d) operational control.
Lastly, the VFA did not have provisions that may have been construed as a restriction or
modification of obligations found in existing statutes. The EDCA contains provisions that may
affect various statutes including, among others, (a) the jurisdiction of courts, (b) local
autonomy, and (c) taxation.
VIII
Article 1(1 )(b) of the EDCA authorizes United States forces access to "Agreed Locations" in
the Philippines on a rotational basis.50 Even while the concept of "rotation" may refer to
incidental and transient presence of foreign troops and contractors, the nature of the "Agreed
Locations" is eerily similar to and, therefore, amounts to basing agreements.
"Agreed Locations" has been defined by the EDCA in Article 11(4)
as:chanRoblesvirtualLawlibrary
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 agreements. (Emphasis supplied)cralawlawlibrary
As treaties, the 1947 Military Bases Agreement and its various amendments specified the
actual location of the physical locations of United States troops and facilities. The EDCA,
however, now delegates the identification of the location not to a select Senate Committee or
a public body but simply to our military representatives in the Mutual Defense Board and the
Security Enhancement Board.
More importantly, the extent of access and use allowed to United States forces and
contractors under the EDCA is broad. It is set out in Article III:chanRoblesvirtualLawlibrary
 Article III
Agreed Locations
1. 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, arid 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.
2. 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).
3. Given the mutuality of benefits, the Parties agree that the Philippines shall make
Agreed Locations available to United States forces without rental or similar costs.
United States forces shall cover their necessary operation expenses with respect to
their activities at the Agreed Locations.
4. The Philippines hereby grants to the United States, through bilateral security
mechanisms, such as the MDB and SEB, operational control of Agreed Locations
for construction activities and authority to undertake such activities on, and make
alterations and improvements to, Agreed Locations. United States forces shall
consult on issues regarding such construction; alterations, and improvements 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.
....
6. United States forces shall be responsible on the basis of proportionate use for
construction, development, operation, and maintenance costs at Agreed Locations.
Specific funding arrangements may be fined in Implementing arrangements.
(Emphasis supplied)
Parsing the provisions carefully, we find that the Agreed Locations may be used
for:chanRoblesvirtualLawlibrary
(1) training;
(2) transit;
(3) support and related activities;
(4) refueling of aircraft;
(5) bunkering of vessels;
(6) temporary maintenance of vehicles, vessels, and aircraft;
(7) temporary accommodation of personnel;
(8) communications;
(9) pre-positioning of equipment, supplies, and materiel;
(10) deploying forces and materiel; and
(11) other activities as the parties may agree.cralawlawlibrary
There is no hierarchy among these activities. In other words, functions (2) to (11) need not be
supportive only of training or transit. Function (10), which pertains to deployment of United
States forces and materiel, can be done independently of whether there are training
exercises or whether the troops are only in transit.
The permission to do all these activities is explicit in the EDCA. Government has already
authorized and agreed that "United States forces, United States contractors, and vehicles,
vessels, and aircraft operated by or for United States forces" may conduct all these activities.
Carefully breaking down this clause in Article 111(1) of the EDCA, the authorization is already
granted to:chanRoblesvirtualLawlibrary
(a) "United States forces";
(b) "United States contractors"; and
(c) "vehicles, vessels, and aircraft operated by or for United States forces."cralawlawlibrary
United States military forces will not only be allowed to "visit Philippine territory to do a
transient military training exercise with their Philippine counterparts. They are also allowed to
execute, among others, the following scenarios:chanRoblesvirtualLawlibrary
One: Parts of Philippine territory may be used as staging areas for special or regular United
States military personnel for intervention in conflict areas in the Southeast Asian region. This
can be in the form of landing rights given to their fighter jets and stealth bombers or way
stations for SEALS or other special units entering foreign territory in states not officially at war
with the Philippines.
Two: Parts of Philippine territory may be used to supplement overt communication systems of
the United States forces. For instance, cyberwarfare targeting a state hostile to the United
States can be launched from any of the Agreed Locations to pursue their interests even if this
will not augur well to Philippine foreign policy.
Three: Parts of Philippine territory may be used to plan, deploy, and supply covert operations
done by United States contractors such as Blackwater and other mercenary groups that have
been used by the United States in other parts of the world. The EDCA covers these types of
operations within and outside Philippine territory. Again, the consequences to Philippine
foreign policy in cases where targets are found in neighboring countries would be
immeasurable.
The Visiting Forces Agreement does not cover these sample activities. Nor does it cover
United States contractors.
IX
Blanket authority over Agreed Locations is granted under Article VI, Section 3 of the EDCA.
The United States forces are given a broad range of powers with regard to the Agreed
Locations that are "necessary for their operational control or defense."51 This authority
extends to the protection of United States forces and contractors. In addition, the United
States is merely obligated to coordinate with Philippine authorities the measures they will take
in case they deem it necessary to take action.
In contrast, the Mutual Defense Treaty is different. It is specific to the maintenance and
development of the Philippines and the United States' individual and collective capacity to
resist armed attack. The parties' goal under the Mutual Defense Treaty is to enhance
collective defense mechanisms for the preservation of peace and security in the Pacific
area.52
While certain activities such as "joint RP-US military exercises for the purpose of developing
the capability to resist an armed attack fall . . . under the provisions of the RP-US Mutual
Defense Treaty,"53 the alleged principles of Defensive Reaction and Defensive Preparation
do not license the ceding of authority and control over specific portions of the Philippines to
foreign military forces without compliance with the Constitutional requirements. 54 Such grant
of authority and control over Agreed Locations to foreign military forces involves a drastic
change in national policy and cannot be done in a mere executive agreement.
Moreover, nothing in the VFA provides for the use of Agreed Locations to United States
forces or personnel, considering that the VFA focuses on the visitation of United States
armed forces to the Philippines in relation to joint military
exercises:chanRoblesvirtualLawlibrary
Preamble
The Government of the United States of America and the Government of the Republic of the
Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the
Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the Philippines
promotes their common security interests;
Recognizing the desirability of defining the treatment of United States personnel visiting the
Republic of the Philippines!.]
(Emphasis supplied)cralawlawlibrary
In Lim, the Terms of Reference55 of the "Balikatan 02-1" joint military exercises is covered by
the VFA. Hence, under the VFA, activities such as joint exercises, which "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,"56 are authorized. However, Lim specifically provided for the context of the
conduct of the combat-related activities under the VFA: President George W. Bush's
international anti-terrorism campaign as a result of the events on September 11, 2001. 57
Meanwhile, the EDCA unduly expands the scope of authorized activities to Agreed Locations
with only a vague reference to the VFA:chanRoblesvirtualLawlibrary
Article I
Purpose and Scope
1. This Agreement deepens defense cooperation between the Parties and maintains and
develops their individual and collective capacities, in furtherance of Article II of the MDT,
which states that "the Parties separately and jointly by self-help and mutual aid will maintain
and develop their individual capacity to resist armed attack, and within the context of VFA.
This includes:chanRoblesvirtualLawlibrary
(a) Supporting the Parties' shared goal of improving interoperability of the Parties' forces, and
for the Armed Forces of the Philippines ("AFP"), addressing short-term capabilities gaps,
promoting long-term modernization, and helping maintain and develop additional maritime
security, maritime domain awareness, and humanitarian assistance and disaster relief
capabilities; and
(b) Authorizing access to Agreed Locations in the territory of the Philippines by United States
forces on a rotational basis, as mutually determined by the Parties.
2. In furtherance of the MDT, the Parties mutually agree that this Agreement provides the
principal provisions and necessary authorizations with respect to Agreed Locations.
3. The Parties agree that the United States may undertake the following types of activities in
the territory of the Philippines in relation to its access to and use of Agreed Locations:
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.
(Emphasis supplied)cralawlawlibrary
The VFA was ratified in 1998. However, in 2011, the Obama Administration announced its These changes in United States policy are reflected in the EDCA and not in the VFA. Thus,
plan of intensifying its presence in the Asia-Pacific region.58 The United States hinges this there is a substantial change of objectives.
pivot on maritime peace and security in the region in relation to a stable international
economic order.59 Hence, their Department of Defense enumerates three maritime objectives: If, indeed, the goal is only to enhance mutual defense capabilities under the Mutual Defense
"to safeguard the freedom of the seas; deter conflict and coercion; and promote adherence to Treaty through conduct of joint military exercises authorized by the VFA, then it behooves this
international law and standards."60 court to ask the purpose of providing control and authority over Agreed Locations here in the
Philippines when it is outside the coverage of both the Mutual Defense Treaty and the VFA.
To achieve these objectives, the United States conducts operations, exercises, and training Through a vague reference to the VFA, respondents fail to establish how the EDCA merely
with several countries it considers allies in the region.61 Nevertheless, key to the United implements the VFA. They cannot claim that the provisions of the EDCA merely make use of
States' military strategy is the enhancement of its forward presence in the Asia- the authority previously granted under the VFA. What is clear is that the Agreed Locations
Pacific:chanRoblesvirtualLawlibrary become a platform for the United States to execute its new military strategy and strengthen
its presence in the Asia-Pacific, which is clearly outside the coverage of the VFA.
Force Posture
In addition, the EDCA does not merely implement the Mutual Defense Treaty and VFA when
One of the most important efforts the Department of Defense has underway is to enhance our it provides for the entry of United States private contractors into the Philippines.
forward presence by bringing our finest capabilities, assets, and people to the Asia-Pacific
region. The U.S. military presence has underwritten security and stability in the Asia-Pacific In the EDCA, United States contractors are defined as follows:chanRoblesvirtualLawlibrary
region for more than 60 years. Our forward presence not only serves to deter regional conflict
and coercion, it also allows us to respond rapidly to maritime crises. Working in concert with 3. "United States contractors" means companies and firms, and their employees, under
regional allies and partners enables us to respond more effectively to these crises. 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
The United States maintains 368,000 military personnel in the Asia-Pacific region, of which Agreement, including within the context of the VFA.63 (Emphasis supplied)cralawlawlibrary
approximately 97,000 are west of the International Date Line. Over the next five years, the
U.S. Navy will increase the number of ships assigned to Pacific Fleet outside of U.S. territory
This definition admits that the VFA does not provide for the entry of contractors into Philippine
by approximately 30 percent, greatly improving our ability to maintain a more regular and
territory. The activities that United States contractors are allowed to undertake are specific to
persistent maritime presence in the Pacific. And by 2020, 60 percent of naval and overseas
United States forces or personnel only as can be gleaned from this court's decisions in
air assets will be home-ported in the Pacific region. The Department will also enhance Marine
Bayan, Lim, and Nicolas. Hence, the extensive authority granted to United States contractors
Corps presence by developing a more distributed and sustainable laydown model.
cannot be sourced from the VFA:chanRoblesvirtualLawlibrary
Enhancing our forward presence also involves using existing assets in new ways, across the
Article II
entire region, with an emphasis on operational flexibility and maximizing the value of U.S.
DEFINITIONS
assets despite the tyranny of distance. This is why the Department is working to develop a
....
more distributed, resilient, and sustainable posture. As part of this effort, the United States
4. "Agreed Locations" means facilities and areas that are provided by the Government of the
will maintain its presence in Northeast Asia, while enhancing defense posture across the
Philippines through the AFP and that United States forces, United States contractors, and
Western Pacific, Southeast Asia, and the Indian Ocean.
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.
In Southeast Asia, the Department is honing an already robust bilateral exercise program with
our treaty ally, the Republic of the Philippines, to assist it with establishing a minimum
Article III
credible defense more effectively. We are conducting more than 400 planned events with the
AGREED LOCATIONS
Philippines in 2015, including our premier joint exercise, Balikatan, which this year was the
largest and most sophisticated ever. During this year's Balikatan, more than 15,000 U.S.,
1. With consideration of the views of the Parties, the Philippines hereby authorizes and
Philippine, and Australian military personnel exercised operations involving a territorial
agrees that United States forces, United States contractors, and vehicles, vessels, and
defense scenario in the Sulu Sea, with personnel from Japan observing. 62 (Emphasis
aircraft operated by or for United States forces may conduct the following activities with
supplied)cralawlawlibrary
respect to Agreed Locations: training; transit; support and related activities; refuel big 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.
....
Article IV
EQUIPMENT, SUPPLIES, AND MATERIEL
....
4. United States forces and United States 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.
5. The Parties share an intent that United States contractors may carry out such matters in
accordance with, and to the extent permissible under, United States laws, regulations, and
policies. (Emphasis supplied)cralawlawlibrary
Respondents, through the Office of the Solicitor General, insist that the EDCA is an
implementing agreement of the Mutual Defense Treaty and the VFA. They do so based on
the conclusion that all treaties or agreements entered into by the Philippines pursuant to
certain principles contained in the Mutual Defense Treaty may be considered subservient to
these treaties. This will substantially weaken the spirit of Article XVIII, Section 25 and the
sovereign desire to achieve an independent foreign policy.
X
The EDCA authorizes the use of Philippine territory as bases of operations. Although not as
permanent as those set up pursuant to the 1947 Military Bases Agreement, they are still
foreign military bases within the contemplation of Article XVIII, Section 25 of the Constitution.
The development and use of these Agreed Locations are clearly within the discretion of the
United States. The retention of ownership by the Philippines under Article V(l) 64 of the EDCA
does not temper the wide latitude accorded to the other contracting party. At best, the United
States' only obligation is to consult and coordinate with our government. Under the EDCA,
the consent of the Philippine government does not extend to the operations and activities to
be conducted by the United States forces and contractors. Operational control remains solely
with the United States government. The agreement did not create a distinction between
domestic and international operations. Ownership of the Agreed Locations under the EDCA is
a diluted concept, with the Philippine government devoid of any authority to set the
parameters for what may and may not be conducted within the confines of these areas.
What constitutes a "base" in the context of United States-Philippine relations may be explored
by revisiting the 1947 Military Bases Agreement.65 In one of the agreement's preambular
clauses, the United States and Philippine governments agreed that in line with cooperation
and common defense, the United States shall be granted the use of certain lands of the
public domain in the Philippines, free of rent.66 In line with the promotion of mutual security
and territorial defense, the extent of rights of the contracting parties in the use of these lands
was described in Article III of the agreement:chanRoblesvirtualLawlibrary
Article III
Description of rights
1. It is mutually agreed that the United States shall have the rights, power and authority within
the bases which are necessary for the establishment, use, operation and defense thereof or
appropriate for the control thereof and all the rights, power and authority within the limits of
territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary
to provide access to them, or appropriate for their control.
2. Such rights, power and authority shall include, inter alia, the right, power and
authority:chanRoblesvirtualLawlibrary
a) to construct (including dredging and filling), operate, maintain, utilize, occupy, garrison and
control the bases;
b) to improve and deepen the harbors, channels, entrances and anchorages, and to construct
or maintain necessary roads and bridges affording access to the bases;
c) 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 waterborne craft, aircraft
and other vehicles on water, in the air or on land comprising or in the vicinity of the bases;
d) the right to acquire, as may be agreed between the two Governments, such rights of way,
and to construct thereon, as may be required for military purposes, wire and radio
communications facilities, including sub-marine and subterranean cables, pipe lines and spur
tracks from railroads to bases, and the right, as may be agreed upon between the two
Governments to construct the necessary facilities;
e) 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.
3. In the exercise of the above-mentioned rights, power and authority, the United States
agrees that the powers granted to it will not be used unreasonably or, unless required by
military necessity determined by the two Governments, so as to interfere with the necessary
rights of navigation, aviation, communication, or land travel within the territories of the
Philippines. In the practical application outside the bases of the rights, power and authority
granted in this Article there shall be, as the occasion requires, consultation between the two
Governments. (Emphasis supplied)cralawlawlibrary

The bases contemplated by the 1947 Military Bases Agreement contain the elements of (a)
absolute control of space; (b) the presence of a foreign command; and (c) having a purpose
of a military nature. The agreement also relegates the role of the Philippine government to a
mere "consultant" in cases of applications falling outside the terms provided in Article III.
The EDCA contains similar elements.
However, the EDCA has an open-ended duration. Despite having an initial term of 10 years,
Article XII(4) specifically provides for the automatic continuation of the agreement's effectivity
until a party communicates its intent to terminate.67
The purpose of the Agreed Locations is also open-ended. At best, its definition and
description of rights provide that the areas shall be for the use of United States forces and
contractors. However, short of referring to Agreed Locations as bases, the EDCA enumerates
activities that tend to be military in nature, such as bunkering of vessels, pre-positioning of
equipment, supplies, and materiel, and deploying forces and materiel.68 The United States is
also allowed to undertake the construction of permanent facilities,69 as well as to use utilities
and its own telecommunications systems.70
Most significant is the Philippine government's grant to the United States government of
operational control over the Agreed Locations:71chanroblesvirtuallawlibrary
Article VI
Security
....
3. 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 measures to protect United States forces and United States contractors. The
United States should coordinate such measures with appropriate authorities of the
Philippines.
4. The Parties shall take all reasonable measures to ensure the protection, safety, and
security of United States property from seizure by or conversion to the use of any party other
than the United States, without the prior written consent of the United States. (Citation
omitted)cralawlawlibrary
The United States Department of Defense Dictionary of Military and Associated Terms 72
defines "operational control" as:chanRoblesvirtualLawlibrary
[Operational control — 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 necessary to accomplish the
mission. Also called OPCON.cralawlawlibrary
Similar to the 1947 Military Bases Agreement, the role of the Philippine government has been
reduced to that of a consultant, except that the EDCA avoided the use of this label.
In some respects, too, the EDCA is similar to the Treaty of Friendship, Cooperation and
Security between the Government of the Republic of the Philippines and the Government of
the United States of America, which was rejected by the Philippine Senate in 1991. This
rejected treaty73 defines installations as:chanRoblesvirtualLawlibrary
"Installations" on the base authorized for use by the United States forces are buildings and
structures to include non-removable buildings, structures, and equipment therein owned by
the Government of the Philippines, grounds, land or sea areas specifically delineated for the
purpose. "Non-removable buildings and structures" refer to buildings, structures, and other
improvements permanently affixed to the ground, and such equipment, including essential
utility systems such as energy and water production and distribution systems and heating and
air conditioning systems that are an integral part of such buildings and structures, which are
essential to the habitability and general use of such improvements and are permanently
attached to or integrated into the property.cralawlawlibrary
The treaty, which was not concurred in by the Senate, sets the parameters for defense
cooperation and the use of installations in several provisions:chanRoblesvirtualLawlibrary
Article IV
Use of Installations by the US Forces
1. Subject to the provisions of this Agreement, the Government of the Philippines authorizes
the Government of the United States to continue to use for military purposes certain
installations in Subic Naval Base.
2. The installations shall be used solely for the purposes authorized under this Agreement,
and such other purposes as may be mutually agreed upon
3. Ownership of all existing non-removable buildings and structures in Subic Naval Base is
with the Government of the Philippines which has title over them. The Government of the
Philippines shall also become owner of all non-removable buildings and structures that shall
henceforth be constructed in Subic Naval Base immediately after their completion, with title
thereto being vested with the Government of the Philippines.
4. The Government of the United States shall not remove, relocate, demolish, reconstruct or
undertake major external alterations of non-removable buildings and structures in Subic
Naval Base without the approval of the Philippine commander. The United States shall also
not construct any removable or non-removable buildings or structures without the approval of
the Philippine Commander. The Philippine Commander will grant such approval for reasons
of safety as determined jointly by the Philippine and United States Commanders
....
8. The Government of the United States shall bear costs of operations and maintenance of
the installations authorized for use in accordance with Annex B to this Agreement.

9. The Government of the Philippines will, upon request, assist the United States authorities
in obtaining water, electricity, telephone and other utilities. Such utilities shall be provided to
the Government of the United States, United States contractors and United States personnel
for activities under this Agreement at the rates, terms and conditions not less favorable than
those available to the military forces of the Philippine government, and free of duties, taxes,
and other charges.
Article VII Defense Cooperation and Use of Philippine Installations
1. Recognizing that cooperation in the areas of defense and security serves their mutual
interest and contributes to the maintenance of peace, and reaffirming their existing defense
relationship, the two Governments shall pursue their common concerns in defense and
security.
2. The two Governments recognize the need to readjust their defense and security
relationship to respond to existing realities in the national, regional, and global environment.
To this end, the Government of the Republic of the Philippines allows the Government of the
United States to use installations in Subic Naval Base for a specified period, under specific
conditions set forth in Supplementary Agreement Number Two: Agreement on Installations
and Military Operating Procedures and Supplementary Agreement Number Three:
Agreement on the Status of Forces.
3. Both governments shall also cooperate in the maintenance, upgrading and modernization
of the defense and security capabilities of the armed forces of both countries, particularly of
those of the Republic of the Philippines. In accordance with the common desire of the Parties
to improve their defense relationship through balanced, mutual contributions to their common
defense, the Government of the United States shall, subject to the constitutional procedures
and to United States Congressional action, provide security assistance to the Government of
the Philippines to assist in the modernization and enhancement of the capabilities of the
Armed Forces of the Philippines and to support appropriate economic
programs.cralawlawlibrary
The 1987 Constitution does not proscribe the establishment of permanent or temporary
foreign military bases. However, the Constitution now requires that decisions on the presence
of foreign military bases, troops, and facilities be not the sole prerogative of the President and
certainly not the prerogative at all of the Secretary of Defense or Philippine Representatives
to the Mutual Defense Board and the Security Enhancement Board.
Absent any transmission by the President to the Senate, the EDCA remains a formal official
memorial of the results of intensive negotiations only. It has no legal effect whatsoever, and
any implementation at this stage will be grave abuse of discretion.
XI
Thus, the EDCA amends the VFA. Since the VFA is a treaty, the EDCA cannot be
implemented.
Treaties, being of the same status as that of municipal law, may be modified either by another
statute or by the Constitution itself.74 Treaties such as the VFA cannot be amended by an
executive agreement.
XII
Petitioners invoke this court's power of judicial review to determine whether respondents from
the Executive Branch exceeded their powers and prerogatives in entering into this agreement
on behalf of the Philippines "in utter disregard of the national sovereignty, territorial integrity
and national interest provision of the Constitution, Section 25 of the Transitory provisions of
the Constitution, Section 21 and other provisions of the Philippine Constitution and various
Philippine laws and principles of international law."75
Petitioners submit that all requisites for this court to exercise its power of judicial review are
present.76 Petitioners in G.R. No. 212444 discussed that they had legal standing and they
raised justiciable issues. Petitioners in G.R. No. 212426 similarly discussed their legal
standing, the existence of an actual case or controversy involving a conflict of legal rights,
and the ripeness of the case for adjudication.77
Respondents counter that only the Senate may sue on matters involving constitutional
prerogatives, and none of the petitioners are Senators.78 They submit that "[t]he silence and
active non-participation of the Senate in the current proceedings is an affirmation of the
President's characterization of the EDCA as an executive agreement,"79 and "there is no such
actual conflict between the Executive and the Senate." 80 They add that the overuse of the
transcendental importance exception "has cheapened the value of the Constitution's
safeguards to adjudication."81
Article VIII, Section 1 of the Constitution now clarifies the extent of this court's power of
judicial review "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."82
The 1936 landmark case of Angara v. Electoral Commission83 explained the fundamental
principle of separation of powers among government branches and this court's duty to
mediate in the allocation of their constitutional boundaries:chanRoblesvirtualLawlibrary
In times of social disquietude or political excitement, the great landmarks of the Constitution
are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the integral or constituent
units thereof.
. . . 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 limitation and
restrictions embodied in our Constitution are real as they should be in any living constitution. .
..
The Constitution is a definition of the powers of government. . . The Constitution itself has
provided for the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. This is in
truth all that is involved in what is termed "judicial supremacy" which properly is the power of
judicial review under the Constitution. Even then, this 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 Us mota
presented. Any attempt at abstraction could only lead to dialectics and barren legal questions
and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner,
the judiciary does not pass upon questions 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 governments of the government.84cralawlawlibrary
Jurisprudence abounds on these four requisites for the exercise of judicial review. It must be
shown that an actual case or controversy exists; that petitioners have legal standing; that they
raised the constitutionality question at the earliest possible opportunity; and that the
constitutionality question is the very lis mota of the case.85
This court can only exercise its power of judicial review after determining the presence of all
requisites, such as an actual case or controversy, in consideration of the doctrine of
separation of powers. It cannot issue advisory opinions nor overstep into the review of the
policy behind actions by the two other co-equal branches of government. It cannot assume
jurisdiction over political questions.
XIII
The requirement for an actual case or controversy acknowledges that courts should refrain
from rendering advisory opinions concerning actions by the other branches of government. 86
Courts resolve issues resulting from adversarial positions based on existing facts established
by the parties who seek the court's application or interpretation of a legal provision that
affects them.87 It is not for this court to trigger or re-enact the political debates that resulted in
the enactment of laws after considering broadly construed factual circumstances to allow a
general application by the Executive.88
The requisite actual case or controversy means the existence of "a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot
or academic or based on extra-legal or other similar considerations not cognizable by a court
of justice."89 It means the pleadings show "an active antagonistic assertion of a legal right, on
the one hand, and a denial thereof on the other; that is, it must concern a real and not a
merely theoretical question or issue."90
Thus, it is not this court's duty to "rule on abstract and speculative issues barren of actual
facts."91 Ruling on abstract cases presents the danger of foreclosing litigation between real
parties, and rendering advisory opinions presents the danger of a court that substitutes its
own imagination and predicts facts, acts, or events that may or may not happen. 92 Facts
based on judicial proof must frame the court's discretion,93 as "[r]igor in determining whether
controversies brought before us are justiciable avoids the counter majoritarian difficulties
attributed to the judiciary."94
Abstract cases include those where another political department has yet to act. In other
words, a case not ripe for adjudication is not yet a concrete case.
Republic of the Philippines v. Roque95 clarified the concept of having an actual case or
controversy and the aspect of ripeness:chanRoblesvirtualLawlibrary
Pertinently, a justiciable controversy refers to an existing case or controversy that is
appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory.
Corollary thereto, by "ripening seeds" it is meant, not that sufficient accrued facts may be
dispensed with, but that a dispute may be tried at its inception before it has accumulated the
asperity, distemper, animosity, passion, and violence of a full blown battle that looms ahead.
The concept describes a state of facts indicating imminent and inevitable litigation provided
that the issue is not settled and stabilized by tranquilizing declaration.
A perusal of private respondents' petition for declaratory relief would show that they have
failed to demonstrate how they are left to sustain or are in immediate danger to sustain some
direct injury as a result of the enforcement of the assailed provisions of RA 9372. Not far
removed from the factual milieu in the Southern Hemisphere cases, private respondents only
assert general interests as citizens, and taxpayers and infractions which the government
could prospectively commit if the enforcement of the said law would remain untrammelled. As
their petition would disclose, private respondents' fear of prosecution was solely based on
remarks of certain government officials which were addressed to the general public. They,
however failed to show how these remarks tended towards any prosecutorial or governmental
action geared towards the implementation of RA 9372 against them. In other words, there
was no particular, real or imminent threat to any of them As held in Southern Hemisphere:
Without any justiciable controversy, the petitions have become pleas for declaratory relief,
over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by "double contingency" where both the activity the petitioners intend to
undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond
judicial review for lack of ripeness.
The possibility of abuse in the implementation of RA 9372 does not avail to take the present
petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar
to RA 9372 since the exercise of any power granted by law may be abused. Allegations of
abuse must be anchored on real events before courts may step in to settle actual
controversies involving rights which are legally demandable and enforceable.96 (Emphasis
supplied, citations omitted)
cralawlawlibrary
Our courts generally treat the issue of ripeness for adjudication in terms of actual injury to the
plaintiff.97 The question is whether "the act being challenged has had a direct adverse effect
on the individual challenging it."98 The Petitions are premature. Since the Senate has yet to
act and the President has yet to transmit to the Senate, there is no right that has been
violated as yet.
XIV
There is still a political act that must happen before the agreement can become valid and
binding. The Senate can still address the constitutional challenges with respect to the
contents of the EDCA. Thus, the challenges to the substantive content of the EDCA are, at
present, in the nature of political questions.
However, the nature of the EDCA, whether it is a treaty or merely an executive agreement, is
ripe for adjudication.
In 1957, Tañada v. Cuenco99 explained the concept of political questions as referring to
issues that depend not on the legality of a measure but on the wisdom behind
it:chanRoblesvirtualLawlibrary
As already adverted to, the objection to our jurisdiction hinges on the question whether the
issue before us is political or not. In this connection, Willoughby lucidly states:
"Elsewhere in this treatise the well-known and well-established principle is considered that it
is not within the province of the courts to pass judgment upon the policy of legislative or
executive action. Where, therefore, discretionary powers are granted by the Constitution or by
statute, the manner in which those powers are exercised is not subject to judicial review. The
courts, therefore, concern themselves only with the question as to the existence and extent of
these discretionary powers.
As distinguished from the judicial, the legislative and executive departments are spoken of as
the political departments of government because in very many cases their action is
necessarily dictated by considerations of public or political policy. These considerations of
public or political policy of course will not permit the legislature to violate
constitutional provisions, or the executive to exercise authority not granted him by the
Constitution or by statute, but, within these limits, they do permit the departments,
separately or together, to recognize that a certain set of facts exists or that a given status
exists, and these determinations, together with the consequences that flow therefrom, may
not be traversed in the courts."
To the same effect is the language used in Corpus Juris Secundum, from which we quote:
"It is well-settled doctrine that political questions are not within the province of the judiciary,
except to the extent that power to deal with such questions has been conferred upon the
courts by express constitutional or statutory provisions.
"It is not easy, however, to define the phrase 'political question', nor to determine what
matters fall within its scope. It is frequently used to designate all questions that the outside
the scope of the judicial questions, which under the constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government."
Thus, it has been repeatedly held that the question whether certain amendments to the
Constitution are invalid for non-compliance with the procedure therein prescribed, is not a
political one and may be settled by the Courts.
In the case of In re McConaughy, the nature of political question was considered carefully.
The Court said:
"At the threshold of the case we are met with the assertion that the questions involved are
political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the
state canvassing board would then be final, regardless of the actual vote upon the
amendment. The question thus raised is a fundamental one; but it has been so often decided
contrary to the view contended for by the Attorney General that it would seem, to be finally
settled.
. . . What is generally meant, when it is said that a question is political, and not judicial, is that
it is a matter which is to be exercised by the people in their primary political capacity,
or that it has been specifically delegated to some other department or particular officer
of the government, with discretionary power to act. Thus the Legislature may in its
discretion determine whether it will pass a law or submit a proposed constitutional
amendment to the people. The courts have no judicial control over such matters, not merely
because they involve political question, but because they are matters which the people have
by the Constitution delegated to the Legislature. The Governor may exercise the powers
delegated-to him, free from judicial control, so long as he observes the laws and acts within
the limits of the power conferred. His discretionary acts cannot be controllable, not primarily
because they are of a political nature, but because the Constitution and laws have placed the
particular matter under his control. But every officer under a constitutional government must
act according to law and subject him to the restraining and controlling power of the people,
acting through the courts, as well as through the executive or the Legislature. One
department is just as representative as the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law places upon all
official action. The recognition of this principle, unknown except in Great Britain and America,
is necessary, to 'the end that the government may be one of laws and not men'—words which
Webster said were the greatest contained in any written constitutional document."
In short, the term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus
JurisSecundum (supra), it refers to "those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government." It is
concerned with issues dependent upon the wisdom, not legality, of a particular measure. 100
(Emphasis supplied, citations omitted)cralawlawlibrary
Francisco v. House of Representatives 101 involved the second impeachment Complaint filed
against former Chief Justice Hilario Davide before the House of Representatives and raised
the issue of whether this raised a political question. It traced the evolution of jurisprudence on
the political question doctrine and the effect of this court's expanded power of judicial review
under the present Constitution on this doctrine:chanRoblesvirtualLawlibrary
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would have
normally left to the political departments to decide. . . .
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, (t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction todelimit
constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with the
applicability of the principle in appropriate cases.
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from resolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even the political question. . .
. binding as a treaty or fully complying with the requirements of Article XVIII, Section 25.
....
In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed
limits on powers or functions conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or instrumentality of the
government properly acted within such limits[.]102 (Emphasis supplied)cralawlawlibrary
In Diocese of Bacolod v. COMELEC,103 this court held that the political question doctrine
never precludes this court's exercise of its power of judicial review when the act of a
constitutional body infringes upon a fundamental individual or collective right. 104 However, this
will only be true if there is no other constitutional body to whom the discretion to make inquiry
is preliminarily granted by the sovereign.
Ruling on the challenge to the content of the EDCA will preclude and interfere with any future
action on the part of the Senate as it inquires into and deliberates as to whether it should give
its concurrence to the agreement or whether it should advise the President to reopen
negotiations to amend some of its provisions. It is the Senate, through Article VII, Section 21
in relation to Article XVIII, Section 25, that was given the discretion to make this initial inquiry
exclusive of all other constitutional bodies, including this court. A policy of deference and
respect for the allocation of such power by the sovereign to a legislative chamber requires
that we refrain from making clear and categorical rulings on the constitutional challenges to
the content of the EDCA.
XV
It is true that we have, on certain occasions, substantially overridden the requirements of
justiciability when there is an imminent threat to the violation of constitutional rights. In Garcia
v. Drilon,105 I stated that:chanRoblesvirtualLawlibrary
I am aware of our precedents where this Court has waived questions relating to the
justiciability of the constitutional issues raised when they have "transcendental importance" to
the public. In my view, this accommodates our power to promulgate guidance "concerning the
protection and enforcement of constitutional rights." We choose to rule squarely on the
constitutional issues in a petition wanting all or some of the technical requisites to meet out
general doctrines on justiciability but raising clear conditions showing imminent threat to
fundamental rights. The imminence and clarity of the threat to fundamental
constitutional rights outweigh the necessity for prudence. In a sense, our exceptional
doctrine relating to constitutional issues of "transcendental importance" prevents courts from
the paralysis of procedural niceties when clearly faced with the need for substantial
protection.106 (Emphasis supplied, citations omitted)cralawlawlibrary
There is, however, no need to invoke these exceptions. The imminence of the implementation
of the EDCA and, therefore, the clarity of the impending threat to constitutional rights do not
appear cogent if we declare that the EDCA, without Senate concurrence, is not yet valid and
XVI
The proposed disposition of this case does not in any way discount the deployment of the
expertise of the Executive as it conducts foreign policy.
Nor should we arrogate executive discretion by compelling the President to transmit the
agreement to the Senate for concurrence.107
Nevertheless, the judiciary has the duty to ensure that the acts of all branches of government
comply with the fundamental nature of the Constitution.108 While the EDCA is a formal and
official memorial of the results of negotiations between the Philippines and the United States,
it is not yet effective until the Senate concurs or there is compliance with Congressional
action to submit the agreement to a national referendum in accordance with Article XVIII,
Section 25 of the Constitution.
It is, thus, now up to the President. Should he desire to continue the policy embedded in the
EDCA, with deliberate dispatch he can certainly transmit the agreement to the Senate for the
latter to initiate the process to concur with the agreement. After all, on these matters, the
sovereign, speaking through the Constitution, has assumed that the exercise of wisdom is not
within the sole domain of the President. Wisdom, in allowing foreign military bases, troops, or
facilities, is likewise within the province of nationally elected Senators of the Republic.
On these matters, the Constitution rightly assumes that no one person—because of the
exigencies and their consequences—has a monopoly of wisdom.
In my view, the same security concerns that moved the President with haste to ratify the
EDCA signed by his Secretary of Defense will be the same security concerns—and more—
that will move the Senate to consider the agreement with dispatch. There are matters of
national consequence where the views of an elected President can be enriched by the views
of an elected Senate. Certainly, the participation of the public through these mechanisms is
as critical as the foreign policy directions that the EDCA frames.
By abbreviating the constitutional process, this court makes itself vulnerable to a reasonable
impression that we do not have the courage to enforce every word, phrase, and punctuation
in the Constitution promulgated by our People. We will stand weak, as an institution and by
implication as a state, in the community of nations. In clear unequivocal words, the basic
instrument through which we exist requires that we interpret its words to make real an
independent foreign policy. It requires measures be fully publicly discussed before any
foreign resource capable of making war with our neighbors and at the command of a foreign
sovereign—foreign military bases, troops and facilities—becomes effective.
Instead, the majority succumbed to a narrative of dependence to a superpower.
Our collective memories are perilously short. Our sense of history is wanting.
The Americans did not recognize the Declaration of Independence of 1898, which was made
possible by the blood of our ancestors. They ignored their agreements with the Filipino
revolutionaries when they entered Intramuros and staged the surrender of the Spanish
colonizers to them. They ignored our politicians when they negotiated the Treaty of Paris. Not
a single Filipino was there—not even as an observer. They triggered armed conflict with the
Filipino revolutionaries. The schools they put up attempted to block out the inhumanity and
barbarism in the conflict that followed. Only a few remember the massacres of Samar, of Bud
Dajo, and of other places in our country. In the memory of many Filipinos today, these
brutalities have been practically erased.
Filipino veterans of World War II who fought gallantly with the Americans, now gray and
ailing, still await equal treatment with United States war veterans. Filipina comfort women of
that war still seek just treatment and receive no succor from the ally with and for whom they
bled and suffered.
The 1951 Mutual Defense Treaty and the Visiting Forces Agreement was in effect when the
Chinese invaded certain features within our Exclusive Economic Zone in the West Philippine
Sea. The Americans did not come to our aid. The President of the United States visited and,
on the occasion of that visit, our own President announced the completion of the EDCA. No
clear, unequivocal, and binding commitment was given with respect to the applicability of the
Mutual Defense Treaty to the entirety of our valid legal claims in the West Philippine Sea. The
commitment of the United States remains ambiguous. The United States' statement is that it
will not interfere in those types of differences we have with China, among others.
The inequality of the Mutual Defense Treaty is best presented by the image of a
commissioned but rusting and dilapidated warship beached in a shoal in the West Philippine
Sea. This ship is manned by a handful of gallant heroic marines, and by the provisions of the
Mutual Defense Treaty, an attack on this ship—as a public vessel—is what we are relying
upon to trigger mutual defense with the United States.
We remain a permanent ally of the United States. For decades, we relied on them for the
training of our troops and the provision of military materiel. For decades, we hosted their
bases. Yet, our armed forces remain woefully equipped. Unlike in many of their other allies,
no modern US-made fighter jet exists in our Air Force. We have no credible missile defense.
Our Navy's most powerful assets now include a destroyer that was decommissioned by the
United States Coast Guard.
It is now suggested that these will change with the EDCA. It is now suggested that this court
should act to make that change possible. Impliedly, it is thus also suggested that the Senate,
or Congress, or the People in a referendum as provided in our Constitution, will be less
patriotic than this court or the President.
There has never been a time in our history—and will never be a time in the future—when the
national interest of the United States was subservient to ours. We cannot stake our future on
how we imagine the United States will behave in the future. We should learn from our history.
If we wish the United States to behave in a way that we expect, then our government should
demand clear commitments for assistance to our primary interests. The likelihood that this will
happen increases when agreements with them run through the gauntlet of public opinion
before they become effective.
Certainly, this is what the Constitution provides. Certainly, this is the least that we should
guarantee as a court of law.
FINAL NOTE

In 1991, there was the "Senate that Said No" to the extension of the stay of military bases of
the United States within Philippine territory. That historical decision defined the patriotism
implicit in our sovereignty. That single collective act of courage was supposed to usher
opportunities to achieve the vision of our Constitution for a more meaningful but equal
relationship with the American empire. That act was the pinnacle of decades of people's
struggles.
History will now record that in 2016, it is this Supreme Court that said yes to the EDCA. This
decision now darkens the colors of what is left of our sovereignty as defined in our
Constitution. The majority's take is the aftermath of squandered opportunity. We surrender to
the dual narrative of expediency and a hegemonic view of the world from the eyes of a single
superpower. The opinion of the majority of this Supreme Court affirms executive privileges
and definitively precludes Senate and/or Congressional oversight in the crafting of the most
important policies in our relations with the United States and, implicitly, its enemies and its
allies. In its hurry to abbreviate the constitutional process, the majority also excludes the
possibility that our people directly participate in a referendum called to affirm the EDCA.
Article XVIII, Section 25 does not sanction the surreptitious executive approval of the entry of
United States military bases or any of its euphemisms (i.e., "Agreed Locations") through
strained and acrobatic implication from an ambiguous and completely different treaty
provision.
The majority succeeds in emasculating our Constitution. Effectively, this court erases the
blood, sweat, and tears shed by our martyrs.
I register more than my disagreement. I mourn that this court has allowed this government to
acquiesce into collective subservience to the Executive power contrary to the spirit of our
basic law.
I dissent.
ACCORDINGLY, I vote to PARTIALLY GRANT the Petitions and to DECLARE the
Enhanced Defense Cooperation Agreement (EDCA) between the Republic of the Philippines
and the United States of America as a formal and official memorial of the results of the
negotiations concerning the allowance of United States military bases, troops, or facilities in
the Philippines, which is NOT EFFECTIVE until it complies with the requisites of Article XVIII,
Section 25 of the 1987 Philippine Constitution, namely: (1) that the agreement must be in the
form of a treaty; (2) that the treaty must be duly concurred in by the Philippine Senate and,
when so required by Congress, ratified by a majority of votes cast by the people in a national
referendum; and (3) that the agreement is either (a) recognized as a treaty or (b) accepted or
acknowledged as a treaty by the United States before it becomes valid, binding, and
effective.
CUSTOMARY INTERNATIONAL LAW
6. G.R. No. 173034 October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES,
petitioner, vs. HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER
SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR.
JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA,
AND DR. NEMESIO T. GAKO, respondents.
The Court and all parties involved are in agreement that the best nourishment for an infant is
mother's milk. There is nothing greater than for a mother to nurture her beloved child straight
from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the
unequaled benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to
nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules
and Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code,"
Relevant International Agreements, Penalizing Violations Thereof, and for Other
Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains provisions that
are not constitutional and go beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant
Secretaries of the Department of Health (DOH). For purposes of herein petition, the DOH is
deemed impleaded as a co-respondent since respondents issued the questioned RIRR in
their capacity as officials of said executive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28,
1986 by virtue of the legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of the Milk Code states that the law seeks to
give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes
(ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006,
the WHA adopted several Resolutions to the effect that breastfeeding should be supported,
promoted and protected, hence, it should be ensured that nutrition and health claims are not
permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article
24 of said instrument provides that State Parties should take appropriate measures to
diminish infant and child mortality, and ensure that all segments of society, specially parents
and children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7,
2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for
the Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted
without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and in violation of the provisions of the Constitution in promulgating the
RIRR.3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents
from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on
June 19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5,
2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part
of the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process
clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef
"2002 Global Strategy on Infant and Young Child Feeding;" and (3) various World Health
Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-in-
interest, the Court adopts the view enunciated in Executive Secretary v. Court of Appeals, 4 to
wit:
The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its members. An
association has standing to file suit for its workers despite its lack of direct
interest if its members are affected by the action. An organization has standing to
assert the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x
to act as the representative of any individual, company, entity or association on matters
related to the manpower recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and its members
are in every practical sense identical. x x x The respondent [association] is but the
medium through which its individual members seek to make more effective the
expression of their voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court
ruled that an association has the legal personality to represent its members because the
results of the case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in
Executive Secretary, that the association is formed "to represent directly or through approved
representatives the pharmaceutical and health care industry before the Philippine
Government and any of its agencies, the medical professions and the general public."8 Thus,
as an organization, petitioner definitely has an interest in fulfilling its avowed purpose of
representing members who are part of the pharmaceutical and health care industry. Petitioner
is duly authorized9 to take the appropriate course of action to bring to the attention of
government agencies and the courts any grievance suffered by its members which are
directly affected by the RIRR. Petitioner, which is mandated by its Amended Articles of
Incorporation to represent the entire industry, would be remiss in its duties if it fails to act on
governmental action that would affect any of its industry members, no matter how few or
numerous they are. Hence, petitioner, whose legal identity is deemed fused with its members,
should be considered as a real party-in-interest which stands to be benefited or injured by
any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by
respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code,
thereby amending and expanding the coverage of said law. The defense of the DOH is that
the RIRR implements not only the Milk Code but also various international instruments 10
regarding infant and young child nutrition. It is respondents' position that said international
instruments are deemed part of the law of the land and therefore the DOH may implement
them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely:
(1) The United Nations Convention on the Rights of the Child; (2) The International Covenant
on Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All
Forms of Discrimination Against Women, only provide in general terms that steps must be
taken by State Parties to diminish infant and child mortality and inform society of the
advantages of breastfeeding, ensure the health and well-being of families, and ensure that
women are provided with services and nutrition in connection with pregnancy and lactation.
Said instruments do not contain specific provisions regarding the use or marketing of
breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk
substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation.11 The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such
as local legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law. 12
Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall
be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate." Thus, treaties or conventional international law must go through a process
prescribed by the Constitution for it to be transformed into municipal law that can be applied
to domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at
least two-thirds of all members of the Senate as required under Section 21, Article VII of the
1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that
has the force and effect of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at
this point that the Code did not adopt the provision in the ICMBS absolutely prohibiting
advertising or other forms of promotion to the general public of products within the scope of
the ICMBS. Instead, the Milk Code expressly provides that advertising, promotion, or
other marketing materials may be allowed if such materials are duly authorized and
approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law
of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not derive
from treaty obligations. The classical formulation in international law sees those
customary rules accepted as binding result from the combination [of] two elements:
the established, widespread, and consistent practice on the part of States; and a
psychological element known as the opinion juris sive necessitates (opinion as to
law or necessity). Implicit in the latter element is a belief that the practice in question
is rendered obligatory by the existence of a rule of law requiring it.16 (Emphasis
supplied)
"Generally accepted principles of international law" refers to norms of general or customary
international law which are binding on all states,17 i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity,18 a person's right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted
principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a primary
source of international law because they have the "character of jus rationale" and are
"valid through all kinds of human societies." (Judge Tanaka in his dissenting opinion in
the 1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples
are part of international law because they are "basic to legal systems generally" and
hence part of the jus gentium. These principles, he believes, are established by a process
of reasoning based on the common identity of all legal systems. If there should be doubt or
disagreement, one must look to state practice and determine whether the municipal law
principle provides a just and acceptable solution. x x x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
 Custom or customary international law means "a general and consistent practice of
states followed by them from a sense of legal obligation [opinio juris]." (Restatement)
This statement contains the two basic elements of custom: the material factor,
that is, how states behave, and the psychological or subjective factor, that is,
why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of
states. This includes several elements: duration, consistency, and generality of the
practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do
because they consider it obligatory to behave thus or do they do it only as a
matter of courtesy? Opinio juris, or the belief that a certain form of behavior is
obligatory, is what makes practice an international rule. Without it, practice is not
law.22 (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system.23
WHA Resolutions have not been embodied in any local legislation. Have they attained the
status of customary law and should they then be deemed incorporated as part of the law of
the land?
The World Health Organization (WHO) is one of the international specialized agencies allied
with the United Nations (UN) by virtue of Article 57, 24 in relation to Article 6325 of the UN
Charter. Under the 1946 WHO Constitution, it is the WHA which determines the policies of
the WHO,26 and has the power to adopt regulations concerning "advertising and labeling of
biological, pharmaceutical and similar products moving in international commerce,"27 and to
"make recommendations to members with respect to any matter within the competence of the
Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite
different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind
member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or
agreements with respect to any matter within the competence of the Organization. A
two-thirds vote of the Health Assembly shall be required for the adoption of such
conventions or agreements, which shall come into force for each Member when
accepted by it in accordance with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the
adoption by the Health Assembly of a convention or agreement, take action relative
to the acceptance of such convention or agreement. Each Member shall notify
the Director-General of the action taken, and if it does not accept such convention or
agreement within the time limit, it will furnish a statement of the reasons for non-
acceptance. In case of acceptance, each Member agrees to make an annual report
to the Director-General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning:
(a) sanitary and quarantine requirements and other procedures designed to prevent
the international spread of disease; (b) nomenclatures with respect to diseases,
causes of death and public health practices; (c) standards with respect to diagnostic
procedures for international use; (d) standards with respect to the safety, purity and
potency of biological, pharmaceutical and similar products moving in international
commerce; (e) advertising and labeling of biological, pharmaceutical and similar
products moving in international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly
except for such Members as may notify the Director-General of rejection or
reservations within the period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into
force for members, in the same way that conventions or agreements under Article 19 and
regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization.
(Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation
would come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations
are generally not binding, but they "carry moral and political weight, as they constitute the
judgment on a health issue of the collective membership of the highest international body in
the field of health."29 Even the ICMBS itself was adopted as a mere recommendation, as
WHA Resolution No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23
of the Constitution, the International Code of Marketing of Breastmilk Substitutes
annexed to the present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-
seventh session, considered the fourth draft of the code, endorsed it, and
unanimously recommended to the Thirty-fourth World Health Assembly the text of a
resolution by which it would adopt the code in the form of a recommendation
rather than a regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the
WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions
urging member states to implement the ICMBS are merely recommendatory and legally non-
binding. Thus, unlike what has been done with the ICMBS whereby the legislature
enacted most of the provisions into law which is the Milk Code, the subsequent WHA
Resolutions,30 specifically providing for exclusive breastfeeding from 0-6 months,
continued breastfeeding up to 24 months, and absolutely prohibiting advertisements
and promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms,
principles and practices that influence state behavior.31
"Soft law" does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice.32 It is, however, an
expression of non-binding norms, principles, and practices that influence state behavior.33
Certain declarations and resolutions of the UN General Assembly fall under this category. 34
The most notable is the UN Declaration of Human Rights, which this Court has enforced in
various cases, specifically, Government of Hongkong Special Administrative Region v.
Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Rañada37 and Shangri-la International Hotel
Management, Ltd. v. Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the
UN with the mandate to promote and protect intellectual property worldwide, has resorted to
soft law as a rapid means of norm creation, in order "to reflect and respond to the changing
needs and demands of its constituents."39 Other international organizations which have
resorted to soft law include the International Labor Organization and the Food and Agriculture
Organization (in the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe Acute
Respiratory Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on
WHO member states, it provides an excellent example of the power of "soft law" in
international relations. International lawyers typically distinguish binding rules of
international law-"hard law"-from non-binding norms, principles, and practices that
influence state behavior-"soft law." WHO has during its existence generated many
soft law norms, creating a "soft law regime" in international governance for public
health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the
political groundwork for improved international cooperation on infectious diseases. These
resolutions clearly define WHO member states' normative duty to cooperate fully with
other countries and with WHO in connection with infectious disease surveillance and
response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS
epidemic, the duty is powerful politically for two reasons. First, the SARS outbreak
has taught the lesson that participating in, and enhancing, international cooperation on
infectious disease controls is in a country's self-interest x x x if this warning is heeded, the
"soft law" in the SARS and IHR Resolution could inform the development of general and
consistent state practice on infectious disease surveillance and outbreak response,
perhaps crystallizing eventually into customary international law on infectious disease
prevention and control.41
In the Philippines, the executive department implemented certain measures recommended by
WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No.
201 on April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various
departments broad powers to close down schools/establishments, conduct health
surveillance and monitoring, and ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state
to implement the IHR Resolution was still considered not binding or enforceable, although
said resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary law, it must
be established that such rule is being followed by states because they consider it obligatory
to comply with such rules (opinio juris). Respondents have not presented any evidence to
prove that the WHA Resolutions, although signed by most of the member states, were in fact
enforced or practiced by at least a majority of the member states; neither have respondents
proven that any compliance by member states with said WHA Resolutions was obligatory in MILK CODE RIRR
nature.
WHEREAS, in order to ensure that safe Section 2. Purpose – These Revised Rules
and adequate nutrition for infants is and Regulations are hereby promulgated to
Respondents failed to establish that the provisions of pertinent WHA Resolutions are provided, there is a need to protect and ensure the provision of safe and adequate
customary international law that may be deemed part of the law of the land. promote breastfeeding and to inform the nutrition for infants and young children by the
public about the proper use of breastmilk promotion, protection and support of
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions substitutes and supplements and related breastfeeding and by ensuring the proper use
into domestic law. The provisions of the WHA Resolutions cannot be considered as part products through adequate, consistent and of breastmilk substitutes, breastmilk
of the law of the land that can be implemented by executive agencies without the need objective information and appropriate supplements and related products when these
of a law enacted by the legislature. regulation of the marketing and distribution are medically indicated and only when
of the said substitutes, supplements and necessary, on the basis of adequate
Second, the Court will determine whether the DOH may implement the provisions of the related products; information and through appropriate marketing
WHA Resolutions by virtue of its powers and functions under the Revised Administrative and distribution.
Code even in the absence of a domestic law. SECTION 4(e). "Infant" means a person
falling within the age bracket of 0-12 Section 5(ff). "Young Child" means a person
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the months. from the age of more than twelve (12) months
DOH shall define the national health policy and implement a national health plan within the up to the age of three (3) years (36 months).
framework of the government's general policies and plans, and issue orders and Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions,
regulations concerning the implementation of established health policies. can be validly implemented by the DOH through the subject RIRR.

It is crucial to ascertain whether the absolute prohibition on advertising and other forms of
promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as
part of the national health policy.
Respondents submit that the national policy on infant and young child feeding is embodied in
A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the
following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to
two years and beyond; (2) appropriate complementary feeding, which is to start at age six
months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of
other feeding options; and (6) feeding in exceptionally difficult circumstances. Indeed, the
primacy of breastfeeding for children is emphasized as a national health policy. However,
nowhere in A.O. No. 2005-0014 is it declared that as part of such health policy, the
advertisement or promotion of breastmilk substitutes should be absolutely prohibited.
Third, the Court will now determine whether the provisions of the RIRR are in accordance
with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the
following:
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR
extended its coverage to "young children" or those from ages two years old and
beyond:
2. The Milk Code recognizes that infant formula may be a proper and possible
substitute for breastmilk in certain instances; but the RIRR provides "exclusive
breastfeeding for infants from 0-6 months" and declares that "there is no substitute
nor replacement for breastmilk":

The national policy of protection, promotion and support of breastfeeding cannot

automatically be equated with a total ban on advertising for breastmilk substitutes. MILK CODE RIRR
WHEREAS, in order to ensure that safe and Section 4. Declaration of Principles –
In view of the enactment of the Milk Code which does not contain a total ban on the adequate nutrition for infants is provided, there is The following are the underlying principles
advertising and promotion of breastmilk substitutes, but instead, specifically creates an IAC a need to protect and promote breastfeeding and from which the revised rules and
which will regulate said advertising and promotion, it follows that a total ban policy could be to inform the public about the proper use of regulations are premised upon:
implemented only pursuant to a law amending the Milk Code passed by the constitutionally breastmilk substitutes and supplements and
authorized branch of government, the legislature. related products through adequate, consistent
and objective information and appropriate
regulation of the marketing and distribution of the
 said substitutes, supplements and related a. Exclusive breastfeeding is for infants approved by children together with their mothers, fathers, siblings, grandparents, other relatives
products; from 0 to six (6) months. an inter- or caregivers (or yayas) shall be used in any advertisements for infant formula and
agency breastmilk supplements;
b. There is no substitute or replacement committee
for breastmilk. created b. The term "humanized," "maternalized," "close to mother's milk" or similar words
herein in describing breastmilk substitutes or milk supplements;
pursuant to
3. The Milk Code only regulates and does not impose unreasonable requirements for the
advertising and promotion; RIRR imposes an absolute ban on such activities for c. Pictures or texts that idealize the use of infant and milk formula.
applicable
breastmilk substitutes intended for infants from 0-24 months old or beyond, and standards
forbids the use of health and nutritional claims. Section 13 of the RIRR, which provided for Section 16. All health and nutrition claims for products within the scope of the Code
provides for a "total effect" in the promotion of products within the scope of the Code, in this Code. are absolutely prohibited. For this purpose, any phrase or words that connotes to
is vague: increase emotional, intellectual abilities of the infant and young child and other like
phrases shall not be allowed.
MILK CODE RIRR
SECTION 6. Section 4. Declaration of Principles – The following are the underlying principles 4. The RIRR imposes additional labeling requirements not found in the Milk Code:
The General from which the revised rules and regulations are premised upon:
Public and MILK CODE RIRR
Mothers. – xxxx SECTION 10. Containers/Label. – Section 26. Content – Each container/label
shall contain such message, in both Filipino and
(a) No f. Advertising, promotions, or sponsor-ships of infant formula, breastmilk substitutes English languages, and which message cannot
(a) Containers and/or labels shall be
advertising, and other related products are prohibited. be readily separated therefrom, relative the
designed to provide the necessary
promotion or information about the appropriate use of the following points:
other Section 11. Prohibition – No advertising, promotions, sponsorships, or marketing products, and in such a way as not to
marketing
materials and activities for breastmilk substitutes intended for infants and young discourage breastfeeding. (a) The words or phrase "Important Notice" or
materials,
children up to twenty-four (24) months, shall be allowed, because they tend to "Government Warning" or their equivalent;
whether
convey or give subliminal messages or impressions that undermine breastmilk and (b) Each container shall have a clear,
written,
breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements, conspicuous and easily readable and (b) A statement of the superiority of
audio or as well as related products covered within the scope of this Code.
visual, for understandable message in Pilipino or breastfeeding;
products English printed on it, or on a label, which
within the Section 13. "Total Effect" - Promotion of products within the scope of this Code message can not readily become separated (c) A statement that there is no substitute for
scope of this must be objective and should not equate or make the product appear to be as good from it, and which shall include the following breastmilk;
Code shall or equal to breastmilk or breastfeeding in the advertising concept. It must not in any points:
be printed, case undermine breastmilk or breastfeeding. The "total effect" should not directly or
(d) A statement that the product shall be used
published, indirectly suggest that buying their product would produce better individuals, or (i) the words "Important Notice" or their only on the advice of a health worker as to the
distributed, resulting in greater love, intelligence, ability, harmony or in any manner bring better equivalent; need for its use and the proper methods of use;
exhibited health to the baby or other such exaggerated and unsubstantiated claim.
and (ii) a statement of the superiority of (e) Instructions for appropriate prepara-tion,
broadcast Section 15. Content of Materials. - The following shall not be included in breastfeeding; and a warning against the health hazards of
unless such advertising, promotional and marketing materials:
inappropriate preparation; and
materials are (iii) a statement that the product shall be used
duly a. Texts, pictures, illustrations or information which discourage or tend to undermine only on the advice of a health worker as to (f) The health hazards of unnecessary or
authorized the benefits or superiority of breastfeeding or which idealize the use of breastmilk
improper use of infant formula and other related
and substitutes and milk supplements. In this connection, no pictures of babies and
products including information that powdered
the need for its use and the proper methods infant formula may contain pathogenic (e) Manufacturers The following are the underlying principles from which the revised rules
of use; and microorganisms and must be prepared and and distributors of and regulations are premised upon:
used appropriately. products within
(iv) instructions for appropriate preparation, the scope of this i. Milk companies, and their representatives, should not form part of any
and a warning against the health hazards of Code may assist policymaking body or entity in relation to the advancement of
inappropriate preparation. in the research, breasfeeding.
scholarships and
continuing SECTION 22. No manufacturer, distributor, or representatives of products
5. The Milk Code allows dissemination of information on infant formula to health education, of
professionals; the RIRR totally prohibits such activity: covered by the Code shall be allowed to conduct or be involved in any
health
activity on breastfeeding promotion, education and production of
professionals, in Information, Education and Communication (IEC) materials on
MILK CODE RIRR accordance with breastfeeding, holding of or participating as speakers in classes or
SECTION 7. Health Care System. – Section 22. No manufacturer, distributor, or the rules and
seminars for women and children activities and to avoid the use of these
representatives of products covered by the Code regulations
venues to market their brands or company names.
shall be allowed to conduct or be involved in any promulgated by
(b) No facility of the health care system the Ministry of
shall be used for the purpose of activity on breastfeeding promotion, education and SECTION 32. Primary Responsibility of Health Workers - It is the
production of Information, Education and Health.
promoting infant formula or other primary responsibility of the health workers to promote, protect and
products within the scope of this Code. Communication (IEC) materials on breastfeeding, support breastfeeding and appropriate infant and young child feeding. Part
This Code does not, however, preclude holding of or participating as speakers in classes or of this responsibility is to continuously update their knowledge and skills
the dissemination of information to health seminars for women and children activities and to on breastfeeding. No assistance, support, logistics or training from milk
professionals as provided in Section 8(b). avoid the use of these venues to market their companies shall be permitted.
brands or company names.
SECTION 8. Health Workers. - 7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
SECTION 16. All health and nutrition claims for
products within the scope of the Code are
(b) Information provided by
absolutely prohibited. For this purpose, any phrase MILK CODE RIRR
manufacturers and distributors to health
or words that connotes to increase emotional, SECTION 6. The General Section 51. Donations Within the Scope of This Code -
professionals regarding products within
intellectual abilities of the infant and young child Public and Mothers. – Donations of products, materials, defined and covered under
the scope of this Code shall be restricted
to scientific and factual matters and such and other like phrases shall not be allowed. the Milk Code and these implementing rules and regulations,
information shall not imply or create a (f) Nothing herein contained shall be strictly prohibited.
belief that bottle-feeding is equivalent or shall prevent donations from
superior to breastfeeding. It shall also manufacturers and distributors Section 52. Other Donations By Milk Companies Not
include the information specified in of products within the scope of Covered by this Code. - Donations of products,
Section 5(b). this Code upon request by or equipments, and the like, not otherwise falling within the
with the approval of the scope of this Code or these Rules, given by milk companies
Ministry of Health. and their agents, representatives, whether in kind or in cash,
6. The Milk Code permits milk manufacturers and distributors to extend assistance in
research and continuing education of health professionals; RIRR absolutely forbids may only be coursed through the Inter Agency Committee
the same. (IAC), which shall determine whether such donation be
accepted or otherwise.

MILK CODE RIRR

8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
SECTION 8. Section 4. Declaration of Principles –
Health Workers –
MILK RIRR
CODE
 Section 46. Administrative Sanctions. – The following administrative sanctions
shall be imposed upon any person, juridical or natural, found to have violated the
provisions of the Code and its implementing Rules and Regulations:
a) 1st violation – Warning;
b) 2nd violation – Administrative fine of a minimum of Ten Thousand (P10,000.00) to
Fifty Thousand (P50,000.00) Pesos, depending on the gravity and extent of the
violation, including the recall of the offending product;
c) 3rd violation – Administrative Fine of a minimum of Sixty Thousand (P60,000.00) to
One Hundred Fifty Thousand (P150,000.00) Pesos, depending on the gravity and
extent of the violation, and in addition thereto, the recall of the offending product, and
suspension of the Certificate of Product Registration (CPR);
d) 4th violation –Administrative Fine of a minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred (P500,000.00) Thousand Pesos, depending on the
gravity and extent of the violation; and in addition thereto, the recall of the product,
revocation of the CPR, suspension of the License to Operate (LTO) for one year;
e) 5th and succeeding repeated violations – Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of the offending product, cancellation of the CPR,
revocation of the License to Operate (LTO) of the company concerned, including the
blacklisting of the company to be furnished the Department of Budget and
Management (DBM) and the Department of Trade and Industry (DTI);
f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00) Pesos per day
shall be made for every day the violation continues after having received the order
from the IAC or other such appropriate body, notifying and penalizing the company
for the infraction.
For purposes of determining whether or not there is "repeated" violation, each
product violation belonging or owned by a company, including those of their
subsidiaries, are deemed to be violations of the concerned milk company and shall
not be based on the specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-
12 months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code – The Code applies to the marketing, and practices
related thereto, of the following products: breastmilk substitutes, including infant
formula; other milk products, foods and beverages, including bottle-fed
complementary foods, when marketed or otherwise represented to be suitable, with
or without modification, for use as a partial or total replacement of breastmilk; feeding
bottles and teats. It also applies to their quality and availability, and to information
concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the
kind of product being marketed to the public. The law treats infant formula, bottle-fed
complementary food, and breastmilk substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy
the normal nutritional requirements of infants up to between four to six months of age, and
adapted to their physiological characteristics"; while under Section 4(b), bottle-fed
complementary food refers to "any food, whether manufactured or locally prepared, suitable
as a complement to breastmilk or infant formula, when either becomes insufficient to satisfy
the nutritional requirements of the infant." An infant under Section 4(e) is a person falling
within the age bracket 0-12 months. It is the nourishment of this group of infants or children
aged 0-12 months that is sought to be promoted and protected by the Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any
food being marketed or otherwise presented as a partial or total replacement for breastmilk,
whether or not suitable for that purpose." This section conspicuously lacks reference to
any particular age-group of children. Hence, the provision of the Milk Code cannot be
considered exclusive for children aged 0-12 months. In other words, breastmilk
substitutes may also be intended for young children more than 12 months of age. Therefore,
by regulating breastmilk substitutes, the Milk Code also intends to protect and promote the
nourishment of children more than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as
provided in Section 3, then it can be subject to regulation pursuant to said law, even if the
product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not
recognize that breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and
construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and
phrases in the Rule should not be studied as detached and isolated expressions, but the
whole and every part thereof must be considered in fixing the meaning of any of its parts and
in order to produce a harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when necessary, the
use of breastmilk substitutes is proper if based on complete and updated information."
Section 8 of the RIRR also states that information and educational materials should include
information on the proper use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use
of breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446 together as they are
interlinked with each other.
To resolve the question of whether the labeling requirements and advertising regulations
under the RIRR are valid, it is important to deal first with the nature, purpose, and depth of
the regulatory powers of the DOH, as defined in general under the 1987 Administrative
Code,47 and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer span of
jurisprudence on that matter precludes the need to further discuss it. .48 However, health
information, particularly advertising materials on apparently non-toxic products like breastmilk
substitutes and supplements, is a relatively new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands, 50 health
information was already within the ambit of the regulatory powers of the predecessor of
DOH.51 Section 938 thereof charged it with the duty to protect the health of the people, and
vested it with such powers as "(g) the dissemination of hygienic information among the
people and especially the inculcation of knowledge as to the proper care of infants and
the methods of preventing and combating dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the
state policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to
protect and promote the right to health of the people and instill health consciousness
among them."52 To that end, it was granted under Section 3 of the Administrative Code the
power to "(6) propagate health information and educate the population on important health,
medical and environmental matters which have health implications."53
When it comes to information regarding nutrition of infants and young children, however, the
Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the
power to ensure that there is adequate, consistent and objective information on breastfeeding
and use of breastmilk substitutes, supplements and related products; and the power to
control such information. These are expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring –
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health
shall have the following powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper for
the implementation of this Code and the accomplishment of its purposes and
objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for or
incidental to the attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education –
(a) The government shall ensure that objective and consistent information is
provided on infant feeding, for use by families and those involved in the field of infant
nutrition. This responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant nutrition. (Emphasis
supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on
breastmilk vis-à-vis breastmilk substitutes, supplement and related products, in the following
manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing
with the feeding of infants and intended to reach pregnant women and mothers of
infants, shall include clear information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the preparation for and
maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing
partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and
(5) where needed, the proper use of infant formula, whether manufactured industrially
or home-prepared. When such materials contain information about the use of
infant formula, they shall include the social and financial implications of its
use; the health hazards of inappropriate foods or feeding methods; and, in
particular, the health hazards of unnecessary or improper use of infant formula
and other breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes.
SECTION 8. Health Workers –
xxxx
 (b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific
and factual matters, and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5(b).
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the necessary information
about the appropriate use of the products, and in such a way as not to discourage
breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not be used.
(Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to whom such
information may be disseminated under Sections 6 through 9 of the Milk Code 54 to ensure
that the information that would reach pregnant women, mothers of infants, and health
professionals and workers in the health care system is restricted to scientific and factual
matters and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control
information regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the
power to control does not encompass the power to absolutely prohibit the advertising,
marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control
over information given to the DOH is not absolute and that absolute prohibition is not
contemplated by the Code:
a) Section 2 which requires adequate information and appropriate marketing and
distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code – The aim of the Code is to contribute to the
provision of safe and adequate nutrition for infants by the protection and
promotion of breastfeeding and by ensuring the proper use of breastmilk
substitutes and breastmilk supplements when these are necessary, on the
basis of adequate information and through appropriate marketing and
distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and
practices related to breastmilk substitutes, including infant formula, and to information
concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and
consistent information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual informational and
educational materials shall not use any picture or text which may idealize the use of
breastmilk substitutes and should include information on the health hazards of
unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to
review and examine advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific
matters and shall not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information
that would discourage breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR regarding
labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to
breastmilk; and b) that there be a statement that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used appropriately. Section 1657 of
the RIRR prohibits all health and nutrition claims for products within the scope of the Milk
Code, such as claims of increased emotional and intellectual abilities of the infant and young
child.
These requirements and limitations are consistent with the provisions of Section 8 of the Milk
Code, to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific
and factual matters, and such information shall not imply or create a belief that
 bottlefeeding is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms "humanized,"
"maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a
belief that there is any milk product equivalent to breastmilk or which is humanized or
maternalized, as such information would be inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health
workers regarding breastmilk substitutes, not to containers and labels thereof. However, such
restrictive application of Section 8(b) will result in the absurd situation in which milk
companies and distributors are forbidden to claim to health workers that their products are
substitutes or equivalents of breastmilk, and yet be allowed to display on the containers and
labels of their products the exact opposite message. That askewed interpretation of the Milk
Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information
regarding breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time giving
the government control over planning, provision, design, and dissemination of information on
infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product
offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of
the Milk Code and deterring circumvention of the protection and promotion of breastfeeding
as embodied in Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements
Section 5(b) of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing
with the feeding of infants and intended to reach pregnant women and mothers of
infants, shall include clear information on all the following points: x x x (5) where
needed, the proper use of infant formula, whether manufactured industrially or home-
prepared. When such materials contain information about the use of infant formula,
they shall include the social and financial implications of its use; the health hazards
of inappropriate foods or feeding methods; and, in particular, the health
hazards of unnecessary or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text which may idealize the
use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the buyers
thereof. The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the
RIRR merely adds a fair warning about the likelihood of pathogenic microorganisms being
present in infant formula and other related products when these are prepared and used
inappropriately.
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that formula milk is
prone to contaminations and there is as yet no technology that allows production of powdered
infant formula that eliminates all forms of contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the
message regarding health hazards including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk
substitutes and supplements and related products cannot be questioned. It is its intervention
into the area of advertising, promotion, and marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers. –
(a) No advertising, promotion or other marketing materials, whether written, audio or
visual, for products within the scope of this Code shall be printed, published,
distributed, exhibited and broadcast unless such materials are duly authorized and
approved by an inter-agency committee created herein pursuant to the applicable
standards provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and marketing
materials to an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed
of the following members is hereby created:
Minister of Health ------------------- Chairman
Minister of Trade and Industry ------------------- Member
Minister of Justice ------------------- Member
Minister of Social Services and Development ------------------- Member
 The members may designate their duly authorized representative to every meeting of
the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing
materials, whether written, audio or visual, on products within the scope of
this Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit
the printing, publication, distribution, exhibition and broadcast of, all
advertising promotion or other marketing materials, whether written, audio or
visual, on products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its
powers and functions as well as the performance of its duties and
responsibilities; and
(4) To promulgate such rules and regulations as are necessary or
proper for the implementation of Section 6(a) of this Code. x x x
(Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition – No advertising, promotions, sponsorships, or marketing
materials and activities for breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be allowed, because they tend to convey
or give subliminal messages or impressions that undermine breastmilk and
breastfeeding or otherwise exaggerate breastmilk substitutes and/or replacements,
as well as related products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for
breastmilk substitutes in line with the RIRR’s declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles –
xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes
and other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory
authority given to the IAC but also imposed absolute prohibition on advertising, promotion,
and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in
Section 6 thereof for prior approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly
insisted, during the oral arguments on June 19, 2007, that the prohibition under Section 11 is
not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or
not there is an absolute prohibition on advertising making AO 2006-12
unconstitutional. We maintained that what AO 2006-12 provides is not an absolute
prohibition because Section 11 while it states and it is entitled prohibition it states that
no advertising, promotion, sponsorship or marketing materials and activities for
breast milk substitutes intended for infants and young children up to 24 months shall
be allowed because this is the standard they tend to convey or give subliminal
messages or impression undermine that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other
Section, Section 12, provides for the inter agency committee that is empowered to
process and evaluate all the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it
simply regulates the advertisement and the promotions of breastfeeding milk
substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the
provision on the Inter-Agency Committee that processes and evaluates because
there may be some information dissemination that are straight forward information
dissemination. What the AO 2006 is trying to prevent is any material that will
undermine the practice of breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to
promulgate Rules and Regulations regarding the Advertising, Promotion and
Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making
authority when it totally banned advertising and promotion under Section 11
prescribed the total effect rule as well as the content of materials under Section 13
and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban.
Second, the Inter-Agency Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on
advertising of breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of
breastmilk substitutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee
that can evaluate some advertising and promotional materials, subject to the
standards that we have stated earlier, which are- they should not undermine
breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other
Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that
the Inter-Agency Committee has that power to evaluate promotional materials, Your
Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding
milk substitute regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition, however, we
take exceptions and standards have been set. One of which is that, the Inter-Agency
Committee can allow if the advertising and promotions will not undermine breastmilk
and breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for
the approval or rejection of advertising, promotional, or other marketing materials under
Section 12(a) of the Milk Code, said provision must be related to Section 6 thereof which in
turn provides that the rules and regulations must be "pursuant to the applicable standards
provided for in this Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the
Code, which, at the risk of being repetitious, and for easy reference, are quoted hereunder:
SECTION 5. Information and Education –
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing
with the feeding of infants and intended to reach pregnant women and mothers of
infants, shall include clear information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the preparation for and
maintenance of breastfeeding; (3) the negative effect on breastfeeding of introducing
partial bottlefeeding; (4) the difficulty of reversing the decision not to breastfeed; and
(5) where needed, the proper use of infant formula, whether manufactured industrially
or home-prepared. When such materials contain information about the use of infant
formula, they shall include the social and financial implications of its use; the health
 hazards of inappropriate foods of feeding methods; and, in particular, the health
hazards of unnecessary or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text which may idealize the
use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers. –
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
factual matters and such information shall not imply or create a belief that bottle
feeding is equivalent or superior to breastfeeding. It shall also include the information
specified in Section 5(b).
xxxx
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the necessary information
about the appropriate use of the products, and in such a way as not to discourage
breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and
understandable message in Pilipino or English printed on it, or on a label, which
message can not readily become separated from it, and which shall include the
following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health
worker as to the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health
hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for
the enforcement of the provisions of the Code. In relation to such responsibility of the DOH,
Section 5(a) of the Milk Code states that:
SECTION 5. Information and Education –
(a) The government shall ensure that objective and consistent information is
provided on infant feeding, for use by families and those involved in the field of infant
nutrition. This responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant nutrition. (Emphasis
supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the
standards set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall
screen advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the
RIRR which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code
must be objective and should not equate or make the product appear to be as good
or equal to breastmilk or breastfeeding in the advertising concept. It must not in any
case undermine breastmilk or breastfeeding. The "total effect" should not directly or
indirectly suggest that buying their product would produce better individuals, or
resulting in greater love, intelligence, ability, harmony or in any manner bring better
health to the baby or other such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising,
promotion, and marketing. Through that single provision, the DOH exercises control over the
information content of advertising, promotional and marketing materials on breastmilk vis-a-
vis breastmilk substitutes, supplements and other related products. It also sets a viable
standard against which the IAC may screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following:
"public interest," "justice and equity," "public convenience and welfare," and
"simplicity, economy and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with public interest
and welfare.
4. With regard to activities for dissemination of information to health professionals, the Court
also finds that there is no inconsistency between the provisions of the Milk Code and the
RIRR. Section 7(b)66 of the Milk Code, in relation to Section 8(b)67 of the same Code, allows
dissemination of information to health professionals but such information is restricted to
scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of
information to health professionals on scientific and factual matters. What it prohibits is
the involvement of the manufacturer and distributor of the products covered by the Code in
activities for the promotion, education and production of Information, Education and
Communication (IEC) materials regarding breastfeeding that are intended for women and
children. Said provision cannot be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and
distributors to extend assistance in research and in the continuing education of health
professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner
also assails Section 4(i)69 of the RIRR prohibiting milk manufacturers' and distributors'
participation in any policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not
form part of any policymaking body or entity in relation to the advancement of breastfeeding.
The Court finds nothing in said provisions which contravenes the Milk Code. Note that under
Section 12(b) of the Milk Code, it is the DOH which shall be principally responsible for the
implementation and enforcement of the provisions of said Code. It is entirely up to the DOH to
decide which entities to call upon or allow to be part of policymaking bodies on breastfeeding.
Therefore, the RIRR's prohibition on milk companies’ participation in any policymaking body
in relation to the advancement of breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies
from giving reasearch assistance and continuing education to health professionals. Section
2270 of the RIRR does not pertain to research assistance to or the continuing education
of health professionals; rather, it deals with breastfeeding promotion and education for
women and children. Nothing in Section 22 of the RIRR prohibits milk companies from
giving assistance for research or continuing education to health professionals; hence,
petitioner's argument against this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the
RIRR provide that research assistance for health workers and researchers may be
allowed upon approval of an ethics committee, and with certain disclosure
requirements imposed on the milk company and on the recipient of the research
award.
The Milk Code endows the DOH with the power to determine how such research or
educational assistance may be given by milk companies or under what conditions health
workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations
on the kind of research done or extent of assistance given by milk companies are completely
in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving
assistance, support, logistics or training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e)74 of the Milk Code, which provides that
manufacturers and distributors of breastmilk substitutes may assist in researches,
scholarships and the continuing education, of health professionals in accordance with the
rules and regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk
Code. Section 6(f) of the Milk Code provides that donations may be made by manufacturers
and distributors of breastmilk substitutes upon the request or with the approval of the
DOH. The law does not proscribe the refusal of donations. The Milk Code leaves it purely to
the discretion of the DOH whether to request or accept such donations. The DOH then
appropriately exercised its discretion through Section 5175 of the RIRR which sets forth its
policy not to request or approve donations from manufacturers and distributors of breastmilk
substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any
donation from milk companies not covered by the Code should be coursed through the IAC
which shall determine whether such donation should be accepted or refused. As reasoned
out by respondents, the DOH is not mandated by the Milk Code to accept donations. For that
matter, no person or entity can be forced to accept a donation. There is, therefore, no real
inconsistency between the RIRR and the law because the Milk Code does not prohibit the
DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not
found in the Milk Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced.
The glaring difference in said case and the present case before the Court is that, in the Civil
Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted by
the law (R.A. No. 776) the power to impose fines and civil penalties, while the Civil
Aeronautics Board (CAB) was granted by the same law the power to review on appeal the
order or decision of the CAA and to determine whether to impose, remit, mitigate, increase or
compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution
imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court
upheld the Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas
Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission of prohibited
acts. The Court found that nothing in the circular contravened the law because the DOE was
expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the
DOH the authority to fix or impose administrative fines. Thus, without any express grant of
power to fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In this
regard, the DOH again exceeded its authority by providing for such fines or sanctions in
Section 46 of the RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3)
of the Milk Code authorizes the DOH to "cause the prosecution of the violators of this Code
and other pertinent laws on products covered by this Code." Section 13 of the Milk Code
provides for the penalties to be imposed on violators of the provision of the Milk Code or the
rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions –
(a) Any person who violates the provisions of this Code or the rules and
regulations issued pursuant to this Code shall, upon conviction, be punished by a
penalty of two (2) months to one (1) year imprisonment or a fine of not less than One
Thousand Pesos (P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or
both. Should the offense be committed by a juridical person, the chairman of the
Board of Directors, the president, general manager, or the partners and/or the
persons directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any government agency to any health
worker, distributor, manufacturer, or marketing firm or personnel for the practice of
their profession or occupation, or for the pursuit of their business, may, upon
recommendation of the Ministry of Health, be suspended or revoked in the event of
repeated violations of this Code, or of the rules and regulations issued pursuant to
this Code. (Emphasis supplied)
8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that are contrary to the
RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or
parts thereof inconsistent with these revised rules and implementing regulations are
hereby repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and
rules and regulations. Thus, said provision is valid as it is within the DOH's rule-making
power.
An administrative agency like respondent possesses quasi-legislative or rule-making power
or the power to make rules and regulations which results in delegated legislation that is within
the confines of the granting statute and the Constitution, and subject to the doctrine of non-
delegability and separability of powers.78 Such express grant of rule-making power
necessarily includes the power to amend, revise, alter, or repeal the same. 79 This is to allow
administrative agencies flexibility in formulating and adjusting the details and manner by
which they are to implement the provisions of a law,80 in order to make it more responsive to
the times. Hence, it is a standard provision in administrative rules that prior issuances of
administrative agencies that are inconsistent therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to
promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of
the provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is
unnecessary and oppressive, and is offensive to the due process clause of the
Constitution, insofar as the same is in restraint of trade and because a provision
therein is inadequate to provide the public with a comprehensible basis to determine
whether or not they have committed a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the
provisions that suppress the trade of milk and, thus, violate the due process clause of the
Constitution.
The framers of the constitution were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over business interests. 90 In
Pest Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was
held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v.
Philippine Coconut Authority, despite the fact that "our present Constitution
enshrines free enterprise as a policy, it nonetheless reserves to the
government the power to intervene whenever necessary to promote the
general welfare." There can be no question that the unregulated use or proliferation
of pesticides would be hazardous to our environment. Thus, in the aforecited case,
the Court declared that "free enterprise does not call for removal of ‘protective
regulations’." x x x It must be clearly explained and proven by competent
evidence just exactly how such protective regulation would result in the
restraint of trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers’ participation
in any policymaking body (Section 4(i)), classes and seminars for women and children
(Section 22); the giving of assistance, support and logistics or training (Section 32); and the
giving of donations (Section 52) would unreasonably hamper the trade of breastmilk
substitutes. Petitioner has not established that the proscribed activities are indispensable to
the trade of breastmilk substitutes. Petitioner failed to demonstrate that the aforementioned
provisions of the RIRR are unreasonable and oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and
oppressive. Said section provides for the definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer,
distributor of infant formula, follow-up milk, milk formula, milk supplement, breastmilk
 substitute or replacement, or by any other description of such nature, including their
representatives who promote or otherwise advance their commercial interests in
marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the public or
private sector engaged in the business (whether directly or indirectly) of marketing at
the wholesale or retail level a product within the scope of this Code. A "primary
distributor" is a manufacturer's sales agent, representative, national distributor or
broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in the public or private sector
engaged in the business or function (whether directly or indirectly or through an agent
or and entity controlled by or under contract with it) of manufacturing a products
within the scope of this Code.
Notably, the definition in the RIRR merely merged together under the term "milk company"
the entities defined separately under the Milk Code as "distributor" and "manufacturer." The
RIRR also enumerated in Section 5(w) the products manufactured or distributed by an entity
that would qualify it as a "milk company," whereas in the Milk Code, what is used is the
phrase "products within the scope of this Code." Those are the only differences between the
definitions given in the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers
and distributors, the Court sees no harm in the RIRR providing for just one term to
encompass both entities. The definition of "milk company" in the RIRR and the definitions of
"distributor" and "manufacturer" provided for under the Milk Code are practically the same.
The Court is not convinced that the definition of "milk company" provided in the RIRR would
bring about any change in the treatment or regulation of "distributors" and "manufacturers" of
breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with
the objective, purpose and intent of the Milk Code, constituting reasonable regulation of an
industry which affects public health and welfare and, as such, the rest of the RIRR do not
constitute illegal restraint of trade nor are they violative of the due process clause of the
Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of
Administrative Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for
being ultra vires. The Department of Health and respondents are PROHIBITED from
implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of
the provisions of Administrative Order No. 2006-0012 is concerned. SO ORDERED.
7. G.R. No. 182498 December 3, 2009
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent
RAUL CASTAÑEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R.
GOLTIAO, Regional Director of ARMM, PNP, Petitioners, vs. MARY JEAN B. TAGITIS, herein
represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact, Respondent.
We review in this petition for review on certiorari1 the decision dated March 7, 2008 of the
Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 This CA decision confirmed the
enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granted the Writ of
Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent). The dispositive portion
of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby FINDS
that this is an "enforced disappearance" within the meaning of the United Nations
instruments, as used in the Amparo Rules. The privileges of the writ of amparo are hereby
extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal Investigation
and Detention Group (CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9
Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I. RAZON, Chief, PNP,
who should order his men, namely: (a) respondent GEN. JOEL GOLTIAO, Regional Director
of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c)
respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and
Emergency Response, to aid him as their superior- are hereby DIRECTED to exert
extraordinary diligence and efforts, not only to protect the life, liberty and security of Engr.
Morced Tagitis, but also to extend the privileges of the writ of amparo to Engr. Morced Tagitis
and his family, and to submit a monthly report of their actions to this Court, as a way of
PERIODIC REVIEW to enable this Court to monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO,
Commanding General, Philippine Army, and as to respondent GEN. RUBEN RAFAEL, Chief
Anti-Terror Task Force Comet, Zamboanga City, both being with the military, which is a
separate and distinct organization from the police and the CIDG, in terms of operations, chain
of command and budget.
This Decision reflects the nature of the Writ of Amparo – a protective remedy against
violations or threats of violation against the rights to life, liberty and security. 3 It embodies, as
a remedy, the court’s directive to police agencies to undertake specified courses of action to
address the disappearance of an individual, in this case, Engr. Morced N. Tagitis. It does not
determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the enforced disappearance for purposes of
imposing the appropriate remedies to address the disappearance. Responsibility refers to the
extent the actors have been established by substantial evidence to have participated in
whatever way, by action or omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file the appropriate criminal and
civil cases against the responsible parties in the proper courts. Accountability, on the other
hand, refers to the measure of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the level of their complicity to the
level of responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who carry, but have
failed to discharge, the burden of extraordinary diligence in the investigation of the enforced
disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our
primary goal of addressing the disappearance, so that the life of the victim is preserved and
his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the unique
situations that call for the issuance of the writ, as well as the considerations and measures
necessary to address these situations, may not at all be the same as the standard measures
and procedures in ordinary court actions and proceedings. In this sense, the Rule on the Writ
of Amparo4 (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read,
too, as a work in progress, as its directions and finer points remain to evolve through time and
jurisprudence and through the substantive laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are summarized
below.
The established facts show that Tagitis, a consultant for the World Bank and the Senior
Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was
last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB scholar, Tagitis
arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in
Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked
Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When
Kunnong returned from this errand, Tagitis was no longer around.5 The receptionist related
that Tagitis went out to buy food at around 12:30 in the afternoon and even left his room key
with the desk.6 Kunnong looked for Tagitis and even sent a text message to the latter’s
Manila-based secretary who did not know of Tagitis’ whereabouts and activities either; she
advised Kunnong to simply wait.7
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of
Muslim studies and Tagitis’ fellow student counselor at the IDB, reported Tagitis’
disappearance to the Jolo Police Station.8 On November 7, 2007, Kunnong executed a sworn
affidavit attesting to what he knew of the circumstances surrounding Tagitis’ disappearance.9
More than a month later (on December 28, 2007), the respondent filed a Petition for the Writ
of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.10 The
petition was directed against Lt. Gen. Alexander Yano, Commanding General, Philippine
Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M.
Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A.
Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional
Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet
[collectively referred to as petitioners]. After reciting Tagitis’ personal circumstances and the
facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his
early lunch but while out on the street, a couple of burly men believed to be police intelligence
operatives, forcibly took him and boarded the latter on a motor vehicle then sped away
without the knowledge of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension
house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be contacted by
phone and was not also around and his room was closed and locked;
9. Kunnong requested for the key from the desk of the pension house who [sic] assisted him
to open the room of Engr. Tagitis, where they discovered that the personal belongings of
Engr. Tagitis, including cell phones, documents and other personal belongings were all intact
inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB
scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in trying to
locate the whereabouts of Engr. Tagitis and when he reported the matter to the police
authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could have
been abducted by the Abu Sayyaf group and other groups known to be fighting against the
government;
12. Being scared with [sic] these suggestions and insinuations of the police officers, Kunnong
reported the matter to the [respondent, wife of Engr. Tagitis] by phone and other responsible
officers and coordinators of the IDB Scholarship Programme in the Philippines, who alerted
the office of the Governor of ARMM who was then preparing to attend the OIC meeting in
Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees with the Land
Bank in Digos branch, Digos City, Davao del Sur who likewise sought help from some of their
friends in the military who could help them find/locate the whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any positive results except the
information from persons in the military who do not want to be identified that Engr. Tagitis is
in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr. Tagitis is in
the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga
City, being held against his will in an earnest attempt of the police to involve and connect
Engr. Tagitis with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in Cotobato
and in Jolo, as suggested by her friends, seeking their help to find her husband, but
[respondent’s] request and pleadings failed to produce any positive results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the police
that her husband, subject of the petition, was not missing but was with another woman having
good time somewhere, which is a clear indication of the [petitioners’] refusal to help and
provide police assistance in locating her missing husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over subject
Engr. Tagitis to his family or even to provide truthful information to [the respondent] of the
subject’s whereabouts, and/or allow [the respondent] to visit her husband Engr. Morced
Tagitis, caused so much sleepless nights and serious anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the ARMM
Police Headquarters again in Cotobato City and also to the different Police Headquarters
including [those] in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon
City, and all these places have been visited by the [respondent] in search for her husband,
which entailed expenses for her trips to these places thereby resorting her to borrowings and
beggings [sic] for financial help from friends and relatives only to try complying [sic] to the
different suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings undergone by
the [respondent], informed her that they are not the proper persons that she should approach,
but assured her not to worry because her husband is [sic] in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the [respondent’s] request
for help and failure and refusal of the [petitioners] to extend the needed help, support and
assistance in locating the whereabouts of Engr. Tagitis who had been declared missing since
October 30, 2007 which is almost two (2) months now, clearly indicates that the [petitioners]
are actually in physical possession and custody of [respondent’s] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no avail,
and under the circumstances, [the respondent] has no other plain, speedy and adequate
remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal clutches
of the [petitioners], their intelligence operatives and the like which are in total violation of the
subject’s human and constitutional rights, except the issuance of a WRIT OF AMPARO.
[Emphasis supplied]
On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set
the case for hearing on January 7, 2008, and directed the petitioners to file their verified
return within seventy-two (72) hours from service of the writ.11
In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any
involvement in or knowledge of Tagitis’ alleged abduction. They argued that the allegations of
the petition were incomplete and did not constitute a cause of action against them; were
baseless, or at best speculative; and were merely based on hearsay evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he did
not have any personal knowledge of, or any participation in, the alleged disappearance; that
he had been designated by President Gloria Macapagal Arroyo as the head of a special body
called TASK FORCE USIG, to address concerns about extralegal killings and enforced
disappearances; the Task Force, inter alia, coordinated with the investigators and local
police, held case conferences, rendered legal advice in connection to these cases; and gave
the following summary:13
xxxx
4. a) On November 5, 2007, the Regional Director, Police Regional Office ARMM submitted a
report on the alleged disappearance of one Engr. Morced Tagitis. According to the said
report, the victim checked-in at ASY Pension House on October 30, 2007 at about 6:00 in the
morning and then roamed around Jolo, Sulu with an unidentified companion. It was only after
a few days when the said victim did not return that the matter was reported to Jolo MPS.
Afterwards, elements of Sulu PPO conducted a thorough investigation to trace and locate the
whereabouts of the said missing person, but to no avail. The said PPO is still conducting
investigation that will lead to the immediate findings of the whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director,
CIDG. The said report stated among others that: subject person attended an Education
Development Seminar set on October 28, 2007 conducted at Ateneo de Zamboanga,
Zamboanga City together with a Prof. Matli. On October 30, 2007, at around 5:00 o’clock in
the morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise,
he was then billeted at ASY Pension House. At about 6:15 o’clock in the morning of the
same date, he instructed his student to purchase a fast craft ticket bound for Zamboanga
City and will depart from Jolo, Sulu on October 31, 2007. That on or about 10:00 o’clock in
the morning, Engr. Tagitis left the premises of ASY Pension House as stated by the cashier
of the said pension house. Later in the afternoon, the student instructed to purchase the
 ticket arrived at the pension house and waited for Engr. Tagitis, but the latter did not return.
On its part, the elements of 9RCIDU is now conducting a continuous case build up and
information gathering to locate the whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all divisions of the CIDG to
find Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-PNP
Intelligence Operatives since October 30, 2007, but after diligent and thorough search,
records show that no such person is being detained in CIDG or any of its department or
divisions.
5. On this particular case, the Philippine National Police exhausted all possible efforts, steps
and actions available under the circumstances and continuously search and investigate [sic]
the instant case. This immense mandate, however, necessitates the indispensable role of the
citizenry, as the PNP cannot stand alone without the cooperation of the victims and witnesses
to identify the perpetrators to bring them before the bar of justice and secure their conviction
in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his affidavit,
also attached to the Return of the Writ, attesting that upon receipt of the Writ of Amparo, he
caused the following:14
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable
Special Fourth Division of the Court of Appeals, I immediately directed the Investigation
Division of this Group [CIDG] to conduct urgent investigation on the alleged enforced
disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education Development Seminar
on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together with Prof.
Abdulnasser Matli. On October 30, 2007, at around six o’clock in the morning he arrived at
Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong of the Islamic
Development Bank who was also one of the participants of the said seminar. He checked in
at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic]
unidentified companion. At around six o’clock in the morning of even date, Engr. Tagitis
instructed his student to purchase a fast craft ticket for Zamboanga City. In the afternoon of
the same date, Kunnong arrived at the pension house carrying the ticket he purchased for
Engr. Tagitis, but the latter was nowhere to be found anymore. Kunnong immediately
informed Prof. Abdulnasser Matli who reported the incident to the police. The CIDG is not
involved in the disappearance of Engr. Morced Tagitis to make out a case of an enforced
disappearance which presupposes a direct or indirect involvement of the government.
That herein [petitioner] searched all divisions and departments for a person named Engr.
Morced N. Tagitis, who was allegedly abducted or illegally detained by covert CIDG-PNP
Intelligence Operatives since October 30, 2007 and after a diligent and thorough research
records show that no such person is being detained in CIDG or any of its department or
divisions.
That nevertheless, in order to determine the circumstances surrounding Engr. Morced Tagitis
[sic] alleged enforced disappearance, the undersigned had undertaken immediate
investigation and will pursue investigations up to its full completion in order to aid in the
prosecution of the person or persons responsible therefore.
Likewise attached to the Return of the Writ was PNP-PACER15 Chief PS Supt. Leonardo A.
Espina’s affidavit which alleged that:16
xxxx
That, I and our men and women in PACER vehemently deny any participation in the alleged
abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October 30, 2007. As
a matter of fact, nowhere in the writ was mentioned that the alleged abduction was
perpetrated by elements of PACER nor was there any indication that the alleged abduction or
illegal detention of ENGR. TAGITIS was undertaken jointly by our men and by the alleged
covert CIDG-PNP intelligence operatives alleged to have abducted or illegally detained
ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged disappearance of
ENGR. MORCED in my capacity as the chief PACER [sic] considering that our office, the
Police Anti-Crime and Emergency Response (PACER), a special task force created for the
purpose of neutralizing or eradicating kidnap-for-ransom groups which until now continue to
be one of the menace of our society is a respondent in kidnapping or illegal detention case.
Simply put, our task is to go after kidnappers and charge them in court and to abduct or
illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of
PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to investigate,
locate/search the subject, identify and apprehend the persons responsible, to recover and
preserve evidence related to the disappearance of ENGR. MORCED TAGITIS, which may
aid in the prosecution of the person or persons responsible, to identify witnesses and obtain
statements from them concerning the disappearance and to determine the cause, manner,
location and time of disappearance as well as any pattern or practice that may have brought
about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE ARNALDO
BRIONES JR., to submit a written report regarding the disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax his written
report.
That the investigation and measures being undertaken to locate/search the subject in
coordination with Police Regional Office, Autonomous Region of Muslim Mindanao (PRO-
ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP units/agencies in the
area are ongoing with the instruction not to leave any stone unturned so to speak in the
investigation until the perpetrators in the instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF
AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao), also
submitted his affidavit detailing the actions that he had taken upon receipt of the report on
Tagitis’ disappearance, viz:17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM now and during the time of the
incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of reported enforced
disappearances and when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office reported to
me through Radio Message Cite No. SPNP3-1105-07-2007 that on November 4, 2007 at
around 3:30 p.m., a certain Abdulnasser Matli, an employee of Islamic Development Bank,
appeared before the Office of the Chief of Police, Jolo Police Station, and reported the
disappearance of Engr. Morced Tagitis, scholarship coordinator of Islamic Development
Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or taken by any
member of the Philippine National Police but rather he just disappeared from ASY Pension
House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30, 2007, without any
trace of forcible abduction or arrest;
7. The last known instance of communication with him was when Arsimin Kunnong, a student
scholar, was requested by him to purchase a vessel ticket at the Office of Weezam Express,
however, when the student returned back to ASY Pension House, he no longer found Engr.
Tagitis there and when he immediately inquired at the information counter regarding his
whereabouts [sic], the person in charge in the counter informed him that Engr. Tagitis had left
the premises on October 30, 2007 around 1 o’clock p.m. and never returned back to his
room;
8. Immediately after learning the incident, I called and directed the Provincial Director of Sulu
Police Provincial Office and other units through phone call and text messages to conduct
investigation [sic] to determine the whereabouts of the aggrieved party and the person or
persons responsible for the threat, act or omission, to recover and preserve evidence related
to the disappearance of Engr. Tagitis, to identify witnesses and obtain statements from them
concerning his disappearance, to determine the cause and manner of his disappearance, to
identify and apprehend the person or persons involved in the disappearance so that they
shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection Management
Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing
PD Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM on the
matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing
PD Sulu PPO to expedite compliance to my previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating
our series of directives for investigation and directing him to undertake exhaustive
coordination efforts with the owner of ASY Pension House and student scholars of
IDB in order to secure corroborative statements regarding the disappearance and
whereabouts of said personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him
to maximize efforts to establish clues on the whereabouts of Engr. Tagitis by seeking
the cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or whenever
necessary, for them to voluntarily submit for polygraph examination with the NBI so
as to expunge all clouds of doubt that they may somehow have knowledge or idea to
his disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional Chief,
Criminal Investigation and Detection Group, Police Regional Office 9, Zamboanga
City, requesting assistance to investigate the cause and unknown disappearance of
Engr. Tagitis considering that it is within their area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30,
2007 addressed to PD Sulu PPO requiring them to submit complete investigation
report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct
investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and the
circumstances related to his disappearance and submitted the following:
 a) Progress Report dated November 6, 2007 through Radio Message Cite No.
SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are
still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo
Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as shown in the
following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing
him of the facts of the disappearance and the action being taken by our office;
b) Memorandum dated November 6, 2007 addressed to the Director, Directorate for
Investigation and Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be determined
but our office is continuously intensifying the conduct of information gathering, monitoring and
coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of favorable
actions so far taken on the disappearance, the CA directed Gen. Goltiao – as the officer in
command of the area of disappearance – to form TASK FORCE TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to
head TASK FORCE TAGITIS.19 The CA subsequently set three hearings to monitor whether
TASK FORCE TAGITIS was exerting "extraordinary efforts" in handling the disappearance of
Tagitis.20 As planned, (1) the first hearing would be to mobilize the CIDG, Zamboanga City;
(2) the second hearing would be to mobilize intelligence with Abu Sayyaf and ARMM; and (3)
the third hearing would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police
of Zamboanga City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an
intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police Station,
stating a possible motive for Tagitis’ disappearance.22 The intelligence report was apparently
based on the sworn affidavit dated January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof.
Matli), Professor of Islamic Studies at the University of the Philippines and an Honorary
Student Counselor of the IDB Scholarship Program in the Philippines, who told the Provincial
Governor of Sulu that:23
[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has
reportedly taken and carried away… more or less Five Million Pesos (P5,000,000.00)
deposited and entrusted to his … [personal] bank accounts by the Central Office of IDB,
Jeddah, Kingdom of Saudi Arabia, which [was] intended for the … IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be
responsible, he personally went to the CIDG office in Zamboanga City to conduct an ocular
inspection/investigation, particularly of their detention cells. 24 PS Supt. Ajirim stated that the
CIDG, while helping TASK FORCE TAGITIS investigate the disappearance of Tagitis,
persistently denied any knowledge or complicity in any abduction.25 He further testified that
prior to the hearing, he had already mobilized and given specific instructions to their
supporting units to perform their respective tasks; that they even talked to, but failed to get
any lead from the respondent in Jolo.26 In his submitted investigation report dated January
16, 2008, PS Supt. Ajirim concluded:27
9. Gleaned from the undersigned inspection and observation at the Headquarters 9 RCIDU
and the documents at hand, it is my own initial conclusion that the 9RCIDU and other PNP
units in the area had no participation neither [sic] something to do with [sic] mysterious
disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt has been raised
regarding the emolument on the Islamic Development Bank Scholar program of IDB that was
reportedly deposited in the personal account of Engr. Tagitis by the IDB central office in
Jeddah, Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by resentment or
sour grape among students who are applying for the scholar [sic] and were denied which was
allegedly conducted/screened by the subject being the coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that the motive
behind the disappearance of the subject might be due to the funds he maliciously spent for
his personal interest and wanted to elude responsibilities from the institution where he belong
as well as to the Islamic student scholars should the statement of Prof. Matli be true or there
might be a professional jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be dropped and
dismissed considering on [sic] the police and military actions in the area particularly the CIDG
are exerting their efforts and religiously doing their tasked [sic] in the conduct of its
intelligence monitoring and investigation for the early resolution of this instant case. But rest
assured, our office, in coordination with other law-enforcement agencies in the area, are
continuously and religiously conducting our investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did not
appear to be exerting extraordinary efforts in resolving Tagitis’ disappearance on the
following grounds:28
(1) This Court FOUND that it was only as late as January 28, 2008, after the hearing,
that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear
photographs when it should have been standard operating procedure in kidnappings
or disappearances that the first agenda was for the police to secure clear pictures of
the missing person, Engr. Morced Tagitis, for dissemination to all parts of the country
and to neighboring countries. It had been three (3) months since GEN. JOEL
GOLTIAO admitted having been informed on November 5, 2007 of the alleged
abduction of Engr. Morced Tagitis by alleged bad elements of the CIDG. It had been
more than one (1) month since the Writ of Amparo had been issued on December 28,
2007. It had been three (3) weeks when battle formation was ordered through Task
Force Tagitis, on January 17, 2008. It was only on January 28, 2008 when the Task
Force Tagitis requested for clear and recent photographs of the missing person,
Engr. Morced Tagitis, despite the Task Force Tagitis’ claim that they already had an
"all points bulletin", since November 5, 2007, on the missing person, Engr. Morced
Tagitis. How could the police look for someone who disappeared if no clear
photograph had been disseminated?
(2) Furthermore, Task Force Tagitis’ COL. AHIROM AJIRIM informed this Court that
P/Supt KASIM was designated as Col. Ahirom Ajirim’s replacement in the latter’s
official designated post. Yet, P/Supt KASIM’s subpoena was returned to this Court
unserved. Since this Court was made to understand that it was P/Supt KASIM who
was the petitioner’s unofficial source of the military intelligence information that Engr.
Morced Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition),
the close contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE
TAGITIS should have ensured the appearance of Col. KASIM in response to this
court’s subpoena and COL. KASIM could have confirmed the military intelligence
information that bad elements of the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that
she went to Jolo and Zamboanga in her efforts to locate her husband. She said that a friend
from Zamboanga holding a high position in the military (whom she did not then identify) gave
her information that allowed her to "specify" her allegations, "particularly paragraph 15 of the
petition."29 This friend also told her that her husband "[was] in good hands."30 The respondent
also testified that she sought the assistance of her former boss in Davao City, Land Bank
Bajada Branch Manager Rudy Salvador, who told her that "PNP CIDG is holding [her
husband], Engineer Morced Tagitis."31 The respondent recounted that she went to Camp
Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt
Kasim) who read to her and her friends (who were then with her) a "highly confidential report"
that contained the "alleged activities of Engineer Tagitis" and informed her that her husband
was abducted because "he is under custodial investigation" for being a liaison for "J.I. or
Jema’ah Islamiah."32
On January 17, 2008, the respondent on cross-examination testified that she is Tagitis’
second wife, and they have been married for thirteen years; Tagitis was divorced from his first
wife.33 She last communicated with her husband on October 29, 2007 at around 7:31 p.m.
through text messaging; Tagitis was then on his way to Jolo, Sulu, from Zamboanga City. 34
The respondent narrated that she learned of her husband’s disappearance on October 30,
2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not heard
from her father since the time they arranged to meet in Manila on October 31, 2007. 35 The
respondent explained that it took her a few days (or on November 5, 2007) to personally ask
Kunnong to report her husband’s disappearance to the Jolo Police Station, since she had the
impression that her husband could not communicate with her because his cellular phone’s
battery did not have enough power, and that he would call her when he had fully-charged his
cellular phone’s battery.36
The respondent also identified the high-ranking military friend, who gave her the information
found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She
met him in Camp Karingal, Zamboanga through her boss.37 She also testified that she was
with three other people, namely, Mrs. Marydel Martin Talbin and her two friends from Mati
City, Davao Oriental, when Col. Kasim read to them the contents of the "highly confidential
report" at Camp Katitipan, Davao City. The respondent further narrated that the report
indicated that her husband met with people belonging to a terrorist group and that he was
under custodial investigation. She then told Col. Kasim that her husband was a diabetic
taking maintenance medication, and asked that the Colonel relay to the persons holding him
the need to give him his medication.38
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,39 signed by
the respondent, detailing her efforts to locate her husband which led to her meetings with Col.
Ancanan of the Philippine Army and Col. Kasim of the PNP. In her narrative report
concerning her meeting with Col. Ancanan, the respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel Talbin. Our
flight from Davao City is 9:00 o’clock in the morning; we arrived at Zamboanga Airport at
around 10:00 o’clock. We [were] fetched by the two staffs of Col. Ancanan. We immediately
proceed [sic] to West Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed me and
got information about the personal background of Engr. Morced N. Tagitis. After he gathered
all information, he revealed to us the contents of text messages they got from the cellular
phone of the subject Engr. Tagitis. One of the very important text messages of Engr. Tagitis
sent to his daughter Zaynah Tagitis was that she was not allowed to answer any telephone
calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts of Engr. Tagitis.
After the said meeting with Col. Ancanan, he treated us as guests to the city. His two staffs
accompanied us to the mall to purchase our plane ticket going back to Davao City on
November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col. Ancanan
and I were discussing some points through phone calls. He assured me that my husband is
alive and he’s last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe his given
statements of the whereabouts of my husband, because I contacted some of my friends who
have access to the groups of MILF, MNLF and ASG. I called up Col. Ancanan several times
begging to tell me the exact location of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP,
Jolo did not give me any information of the whereabouts of my husband. Col. Ancanan told
me that "Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa mo." When I was
in Zamboanga, I was thinking of dropping by the office of Col. Ancanan, but I was hesitant to
pay him a visit for the reason that the Chief of Police of Jolo told me not to contact any AFP
officials and he promised me that he can solve the case of my husband (Engr. Tagitis) within
nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr.
Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows:41
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao City to
meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis was presumed
to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to contact his
connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis took place. Mr.
Salvador immediately called up Camp Katitipan located in Davao City looking for high-ranking
official who can help me gather reliable information behind the abduction of subject Engineer
Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary,
accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col.
Kasim and we had a short conversation. And he assured me that he’ll do the best he can to
help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that I am to go to
Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three friends. That was the
time that Col. Kasim read to us the confidential report that Engr. Tagitis was allegedly
connected [with] different terrorist [groups], one of which he mentioned in the report was
OMAR PATIK and a certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as a
supplier. These are the two information that I can still remember. It was written in a long bond
paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the one who read it
for us.
He asked a favor to me that "Please don’t quote my Name! Because this is a raw report." He
assured me that my husband is alive and he is in the custody of the military for custodial
investigation. I told him to please take care of my husband because he has aliments and he
recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs. Talbin) to
corroborate her testimony regarding her efforts to locate her husband, in relation particularly
with the information she received from Col. Kasim. Mrs. Talbin testified that she was with the
respondent when she went to Zamboanga to see Col. Ancanan, and to Davao City at Camp
Katitipan to meet Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them that
there was a report and that he showed them a series of text messages from Tagitis’ cellular
phone, which showed that Tagitis and his daughter would meet in Manila on October 30,
2007.43
She further narrated that sometime on November 24, 2007, she went with the respondent
together with two other companions, namely, Salvacion Serrano and Mini Leong, to Camp
Katitipan to talk to Col. Kasim.44 The respondent asked Col. Kasim if he knew the exact
location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good hands, although he
was not certain whether he was with the PNP or with the Armed Forces of the Philippines
(AFP). She further recounted that based on the report Col. Kasim read in their presence,
Tagitis was under custodial investigation because he was being charged with terrorism;
Tagitis in fact had been under surveillance since January 2007 up to the time he was
abducted when he was seen talking to Omar Patik and a certain Santos of Bulacan, a "Balik
Islam" charged with terrorism. Col. Kasim also told them that he could not give a copy of the
report because it was a "raw report."45 She also related that the Col. Kasim did not tell them
exactly where Tagitis was being kept, although he mentioned Talipapao, Sulu.Prof., lalabas
din yan."50 Prof. Matli also emphasized that despite what his January 4, 2008 affidavit
indicated,51 he never told PS Supt. Pingay, or made any accusation, that Tagitis took away
money entrusted to him.52 Prof. Matli confirmed, however, that that he had received an e-mail
report53 from Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was
seeking assistance of the office in locating the funds of IDB scholars deposited in Tagitis’
personal account.54
On cross-examination by the respondent’s counsel, Prof. Matli testified that his January 4,
2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it. 55 Prof Matli
clarified that although he read the affidavit before signing it, he "was not so much aware of…
[its] contents."56
On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of the
respondent’s testimony, particularly the allegation that he had stated that Tagitis was in the
custody of either the military or the PNP.57 Col. Kasim categorically denied the statements
made by the respondent in her narrative report, specifically: (1) that Tagitis was seen carrying
boxes of medicines as supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent that "your husband is in good
hands" and is "probably taken cared of by his armed abductors;" and (3) that Tagitis was
under custodial investigation by the military, the PNP or the CIDG Zamboanga City. 58 Col.
Kasim emphasized that the "informal letter" he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG.59 He also stressed that the information
he provided to the respondent was merely a "raw report" sourced from "barangay
intelligence" that still needed confirmation and "follow-up" as to its veracity.60
On cross-examination, Col. Kasim testified that the information he gave the respondent was
given to him by his informant, who was a "civilian asset," through a letter which he considered
as "unofficial."61 Col. Kasim stressed that the letter was only meant for his "consumption" and
not for reading by others.62 He testified further that he destroyed the letter right after he read it
to the respondent and her companions because "it was not important to him" and also
because the information it contained had no importance in relation with the abduction of
Tagitis.63 He explained that he did not keep the letter because it did not contain any
information regarding the whereabouts of Tagitis and the person(s) responsible for his
abduction.64
In the same hearing on February 11, 2008, the petitioners also presented Police Senior
Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the
respondent’s allegation that Tagitis was in the custody of CIDG-Zamboanga City.65 Col.
Pante clarified that the CIDG was the "investigative arm" of the PNP, and that the CIDG
"investigates and prosecutes all cases involving violations in the Revised Penal Code
particularly those considered as heinous crimes."66 Col. Pante further testified that the
allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was
baseless, since they did not conduct any operation in Jolo, Sulu before or after Tagitis’
reported disappearance.67 Col. Pante added that the four (4) personnel assigned to the Sulu
CIDT had no capability to conduct any "operation," since they were only assigned to
investigate matters and to monitor the terrorism situation.68 He denied that his office
conducted any surveillance on Tagitis prior to the latter’s disappearance.69 Col. Pante further
testified that his investigation of Tagitis’ disappearance was unsuccessful; the investigation
was "still facing a blank wall" on the whereabouts of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its decision71 confirming that the disappearance of Tagitis
was an "enforced disappearance" under the United Nations (UN) Declaration on the
Protection of All Persons from Enforced Disappearances.72 The CA ruled that when military
intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in the
abduction, the missing-person case qualified as an enforced disappearance. The conclusion
that the CIDG was involved was based on the respondent’s testimony, corroborated by her
companion, Mrs. Talbin. The CA noted that the information that the CIDG, as the police
intelligence arm, was involved in Tagitis’ abduction came from no less than the military – an
independent agency of government. The CA thus greatly relied on the "raw report" from Col.
Kasim’s asset, pointing to the CIDG’s involvement in Tagitis’ abduction. The CA held that
"raw reports" from an "asset" carried "great weight" in the intelligence world. It also labeled as
"suspect" Col. Kasim’s subsequent and belated retraction of his statement that the military,
the police, or the CIDG was involved in the abduction of Tagitis.
The CA characterized as "too farfetched and unbelievable" and "a bedlam of speculation"
police theories painting the disappearance as "intentional" on the part of Tagitis. He had no
previous brushes with the law or any record of overstepping the bounds of any trust regarding
money entrusted to him; no student of the IDB scholarship program ever came forward to
complain that he or she did not get his or her stipend. The CA also found no basis for the
police theory that Tagitis was "trying to escape from the clutches of his second wife," on the
basis of the respondent’s testimony that Tagitis was a Muslim who could have many wives
under the Muslim faith, and that there was "no issue" at all when the latter divorced his first
wife in order to marry the second. Finally, the CA also ruled out kidnapping for ransom by the
Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis’ disappearance, since the
respondent, the police and the military noted that there was no acknowledgement of Tagitis’
abduction or demand for payment of ransom – the usual modus operandi of these terrorist
groups.
Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and
his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I.
Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief
Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to protect the life,
liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to
the CA. At the same time, the CA dismissed the petition against the then respondents from
the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it was
PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied
the motion in its Resolution of April 9, 2008.73
THE PETITION
In this Rule 45 appeal questioning the CA’s March 7, 2008 decision, the petitioners mainly
dispute the sufficiency in form and substance of the Amparo petition filed before the CA; the
sufficiency of the legal remedies the respondent took before petitioning for the writ; the finding
that the rights to life, liberty and security of Tagitis had been violated; the sufficiency of
evidence supporting the conclusion that Tagitis was abducted; the conclusion that the CIDG
Zamboanga was responsible for the abduction; and, generally, the ruling that the respondent
discharged the burden of proving the allegations of the petition by substantial evidence. 74
THE COURT’S RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondent’s Amparo petition, the
petitioners contend that the petition violated Section 5(c), (d), and (e) of the Amparo Rule.
Specifically, the petitioners allege that the respondent failed to:
1) allege any act or omission the petitioners committed in violation of Tagitis’ rights to
life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons responsible
for his disappearance, and the respondent’s source of information;
3) allege that the abduction was committed at the petitioners’ instructions or with their
consent;
4) implead the members of CIDG regional office in Zamboanga alleged to have
custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the performance of
their duties in the investigation of Tagitis’ disappearance; and
7) specify what legally available efforts she took to determine the fate or whereabouts
of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall allege, among others
(in terms of the portions the petitioners cite):75
(c) The right to life, liberty and security of the aggrieved party violated or threatened
with violation by an unlawful act or omission of the respondent, and how such threat
or violation is committed with the attendant circumstances detailed in supporting
affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances,
and addresses of the investigating authority or individuals, as well as the manner and
conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of
the aggrieved party and the identity of the person responsible for the threat, act or omission;
and
The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in
stating the threatened or actual violation of a victim’s rights. As in any other initiatory
pleading, the pleader must of course state the ultimate facts constituting the cause of action,
omitting the evidentiary details.76 In an Amparo petition, however, this requirement must be
read in light of the nature and purpose of the proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim
is detained, because these information may purposely be hidden or covered up by those who
caused the disappearance. In this type of situation, to require the level of specificity, detail
and precision that the petitioners apparently want to read into the Amparo Rule is to make
this Rule a token gesture of judicial concern for violations of the constitutional rights to life,
liberty and security.
To read the Rules of Court requirement on pleadings while addressing the unique Amparo
situation, the test in reading the petition should be to determine whether it contains the details
available to the petitioner under the circumstances, while presenting a cause of action
showing a violation of the victim’s rights to life, liberty and security through State or private
party action. The petition should likewise be read in its totality, rather than in terms of its
isolated component parts, to determine if the required elements – namely, of the
disappearance, the State or private action, and the actual or threatened violations of the
rights to life, liberty or security – are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances
under which Tagitis suddenly dropped out of sight after engaging in normal activities, and
thereafter was nowhere to be found despite efforts to locate him. The petition alleged, too,
under its paragraph 7, in relation to paragraphs 15 and 16, that according to reliable
information, police operatives were the perpetrators of the abduction. It also clearly alleged
how Tagitis’ rights to life, liberty and security were violated when he was "forcibly taken and
boarded on a motor vehicle by a couple of burly men believed to be police intelligence
operatives," and then taken "into custody by the respondents’ police intelligence operatives
since October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against
his will in an earnest attempt of the police to involve and connect [him] with different terrorist
groups."77
These allegations, in our view, properly pleaded ultimate facts within the pleader’s knowledge
about Tagitis’ disappearance, the participation by agents of the State in this disappearance,
the failure of the State to release Tagitis or to provide sufficient information about his
whereabouts, as well as the actual violation of his right to liberty. Thus, the petition cannot be
faulted for any failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit,
as required by Section 5(c) of the Amparo Rule. Owing to the summary nature of the
proceedings for the writ and to facilitate the resolution of the petition, the Amparo Rule
incorporated the requirement for supporting affidavits, with the annotation that these can be
used as the affiant’s direct testimony.78 This requirement, however, should not be read as an
absolute one that necessarily leads to the dismissal of the petition if not strictly followed.
Where, as in this case, the petitioner has substantially complied with the requirement by
submitting a verified petition sufficiently detailing the facts relied upon, the strict need for the
sworn statement that an affidavit represents is essentially fulfilled. We note that the failure to
attach the required affidavits was fully cured when the respondent and her witness (Mrs.
Talbin) personally testified in the CA hearings held on January 7 and 17 and February 18,
2008 to swear to and flesh out the allegations of the petition. Thus, even on this point, the
petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged disappearance
must have been made, specifying the manner and results of the investigation. Effectively, this
requirement seeks to establish at the earliest opportunity the level of diligence the public
authorities undertook in relation with the reported disappearance.79
We reject the petitioners’ argument that the respondent’s petition did not comply with the
Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph 11
that Kunnong and his companions immediately reported Tagitis’ disappearance to the police
authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had
disappeared. The police, however, gave them the "ready answer" that Tagitis could have
been abducted by the Abu Sayyaf group or other anti-government groups. The respondent
also alleged in paragraphs 17 and 18 of her petition that she filed a "complaint" with the PNP
Police Station in Cotobato and in Jolo, but she was told of "an intriguing tale" by the police
that her husband was having "a good time with another woman." The disappearance was
alleged to have been reported, too, to no less than the Governor of the ARMM, followed by
the respondent’s personal inquiries that yielded the factual bases for her petition. 80
These allegations, to our mind, sufficiently specify that reports have been made to the police
authorities, and that investigations should have followed. That the petition did not state the
manner and results of the investigation that the Amparo Rule requires, but rather generally
stated the inaction of the police, their failure to perform their duty to investigate, or at the very
least, their reported failed efforts, should not be a reflection on the completeness of the
petition. To require the respondent to elaborately specify the names, personal circumstances,
and addresses of the investigating authority, as well the manner and conduct of the
investigation is an overly strict interpretation of Section 5(d), given the respondent’s
frustrations in securing an investigation with meaningful results. Under these circumstances,
we are more than satisfied that the allegations of the petition on the investigations undertaken
are sufficiently complete for purposes of bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition – that otherwise is not
supported by sufficient allegations to constitute a proper cause of action – as a means to
"fish" for evidence.81 The petitioners contend that the respondent’s petition did not specify
what "legally available efforts were taken by the respondent," and that there was an "undue
haste" in the filing of the petition when, instead of cooperating with authorities, the respondent
immediately invoked the Court’s intervention.
We do not see the respondent’s petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case)
allege "the actions and recourses taken to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission." The
following allegations of the respondent’s petition duly outlined the actions she had taken and
the frustrations she encountered, thus compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his
early lunch but while out on the street, a couple of burly men believed to be police intelligence
operatives, forcibly took him and boarded the latter on a motor vehicle then sped away
without the knowledge of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB
scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in trying to
locate the whereabouts of Engr. Tagitis and when he reported the matter to the police
authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could [have
been] abducted by the Abu Sayyaf group and other groups known to be fighting against the
government;
12. Being scared with these suggestions and insinuations of the police officers, Kunnong
reported the matter to the [respondent](wife of Engr. Tagitis) by phone and other responsible
officers and coordinators of the IDB Scholarship Programme in the Philippines who alerted
the office of the Governor of ARMM who was then preparing to attend the OIC meeting in
Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del Sur, who likewise sought help from some
of their friends in the military who could help them find/locate the whereabouts of her
husband;
 xxxx
15. According to reliable information received by the [respondent], subject Engr. Tagitis is in
the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga
City, being held against his will in an earnest attempt of the police to involve and connect
Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but
[the respondent’s] request and pleadings failed to produce any positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM
Police Headquarters again in Cotobato City and also to the different Police Headquarters
including the police headquarters in Davao City, in Zamboanga City, in Jolo, and in Camp
Crame, Quezon City, and all these places have been visited by the [respondent] in search for
her husband, which entailed expenses for her trips to these places thereby resorting her to
borrowings and beggings [sic] for financial help from friends and relatives only to try
complying to the different suggestions of these police officers, despite of which, her efforts
produced no positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no avail,
and under the circumstances, [respondent] has no other plain, speedy and adequate remedy
to protect and get the release of subject Engr. Morced Tagitis from the illegal clutches of [the
petitioners], their intelligence operatives and the like which are in total violation of the
subject’s human and constitutional rights, except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondent’s petition for the Writ of Amparo
is sufficient in form and substance and that the Court of Appeals had every reason to proceed
with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the Rule on the Writ
of Amparo in an enforced disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance situation, a brief look at the historical
context of the writ and enforced disappearances would be very helpful.
The phenomenon of enforced disappearance arising from State action first attracted notice in
Adolf Hitler’s Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941.82 The
Third Reich’s Night and Fog Program, a State policy, was directed at persons in occupied
territories "endangering German security"; they were transported secretly to Germany where
they disappeared without a trace. In order to maximize the desired intimidating effect, the
policy prohibited government officials from providing information about the fate of these
targeted persons.83
In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and
outraging the world when individuals, numbering anywhere from 6,000 to 24,000, were
reported to have "disappeared" during the military regime in Argentina. Enforced
disappearances spread in Latin America, and the issue became an international concern
when the world noted its widespread and systematic use by State security forces in that
continent under Operation Condor84 and during the Dirty War85 in the 1970s and 1980s. The
escalation of the practice saw political activists secretly arrested, tortured, and killed as part
of governments’ counter-insurgency campaigns. As this form of political brutality became
routine elsewhere in the continent, the Latin American media standardized the term
"disappearance" to describe the phenomenon. The victims of enforced disappearances were
called the "desaparecidos,"86 which literally means the "disappeared ones."87 In general,
there are three different kinds of "disappearance" cases:
1) those of people arrested without witnesses or without positive identification of the
arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate warrant and
held in complete isolation for weeks or months while their families are unable to
discover their whereabouts and the military authorities deny having them in custody
until they eventually reappear in one detention center or another; and
3) those of victims of "salvaging" who have disappeared until their lifeless bodies are
later discovered.88
In the Philippines, enforced disappearances generally fall within the first two categories, 89 and
855 cases were recorded during the period of martial law from 1972 until 1986. Of this
number, 595 remained missing, 132 surfaced alive and 127 were found dead. During former
President Corazon C. Aquino’s term, 820 people were reported to have disappeared and of
these, 612 cases were documented. Of this number, 407 remain missing, 108 surfaced alive
and 97 were found dead. The number of enforced disappearances dropped during former
President Fidel V. Ramos’ term when only 87 cases were reported, while the three-year term
of former President Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local non-
governmental organization, reports that as of March 31, 2008, the records show that there
were a total of 193 victims of enforced disappearance under incumbent President Gloria M.
Arroyo’s administration. The Commission on Human Rights’ records show a total of 636
verified cases of enforced disappearances from 1985 to 1993. Of this number, 406 remained
missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined status. 90
Currently, the United Nations Working Group on Enforced or Involuntary Disappearance91
reports 619 outstanding cases of enforced or involuntary disappearances covering the period
December 1, 2007 to November 30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover extralegal killings and enforced
disappearances or threats thereof."93 We note that although the writ specifically covers
"enforced disappearances," this concept is neither defined nor penalized in this jurisdiction.
The records of the Supreme Court Committee on the Revision of Rules (Committee) reveal
that the drafters of the Amparo Rule initially considered providing an elemental definition of
the concept of enforced disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a
specific definition [for] extrajudicial killings and enforced disappearances. From that definition,
then we can proceed to formulate the rules, definite rules concerning the same.
CHIEF JUSTICE PUNO: … As things stand, there is no law penalizing extrajudicial killings
and enforced disappearances… so initially also we have to [come up with] the nature of these
extrajudicial killings and enforced disappearances [to be covered by the Rule] because our
concept of killings and disappearances will define the jurisdiction of the courts. So we’ll have
to agree among ourselves about the nature of killings and disappearances for instance, in
other jurisdictions, the rules only cover state actors. That is an element incorporated in their
concept of extrajudicial killings and enforced disappearances. In other jurisdictions, the
concept includes acts and omissions not only of state actors but also of non state actors.
Well, more specifically in the case of the Philippines for instance, should these rules include
the killings, the disappearances which may be authored by let us say, the NPAs or the leftist
organizations and others. So, again we need to define the nature of the extrajudicial killings
and enforced disappearances that will be covered by these rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several bills filed in the House of
Representatives96 and in the Senate97 on extrajudicial killings and enforced disappearances,
and resolved to do away with a clear textual definition of these terms in the Rule. The
Committee instead focused on the nature and scope of the concerns within its power to
address and provided the appropriate remedy therefor, mindful that an elemental definition
may intrude into the ongoing legislative efforts.98
As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction
are not crimes penalized separately from the component criminal acts undertaken to carry out
these killings and enforced disappearances and are now penalized under the Revised Penal
Code and special laws.99 The simple reason is that the Legislature has not spoken on the
matter; the determination of what acts are criminal and what the corresponding penalty these
criminal acts should carry are matters of substantive law that only the Legislature has the
power to enact under the country’s constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial killings and
enforced disappearances, however, the Supreme Court is not powerless to act under its own
constitutional mandate to promulgate "rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts,"100 since extrajudicial
killings and enforced disappearances, by their nature and purpose, constitute State or private
party violation of the constitutional rights of individuals to life, liberty and security. Although
the Court’s power is strictly procedural and as such does not diminish, increase or modify
substantive rights, the legal protection that the Court can provide can be very meaningful
through the procedures it sets in addressing extrajudicial killings and enforced
disappearances. The Court, through its procedural rules, can set the procedural standards
and thereby directly compel the public authorities to act on actual or threatened violations of
constitutional rights. To state the obvious, judicial intervention can make a difference – even if
only procedurally – in a situation when the very same investigating public authorities may
have had a hand in the threatened or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we do not rule on
any issue of criminal culpability for the extrajudicial killing or enforced disappearance. This is
an issue that requires criminal action before our criminal courts based on our existing penal
laws. Our intervention is in determining whether an enforced disappearance has taken place
and who is responsible or accountable for this disappearance, and to define and impose the
appropriate remedies to address it. The burden for the public authorities to discharge in these
situations, under the Rule on the Writ of Amparo, is twofold. The first is to ensure that all
efforts at disclosure and investigation are undertaken under pain of indirect contempt from
this Court when governmental efforts are less than what the individual situations require. The
second is to address the disappearance, so that the life of the victim is preserved and his or
her liberty and security restored. In these senses, our orders and directives relative to the writ
are continuing efforts that are not truly terminated until the extrajudicial killing or enforced
disappearance is fully addressed by the complete determination of the fate and the
whereabouts of the victim, by the production of the disappeared person and the restoration of
his or her liberty and security, and, in the proper case, by the commencement of criminal
action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced disappearance is considered
a flagrant violation of human rights.101 It does not only violate the right to life, liberty and
security of the desaparecido; it affects their families as well through the denial of their right to
information regarding the circumstances of the disappeared family member. Thus, enforced
disappearances have been said to be "a double form of torture," with "doubly paralyzing
impact for the victims," as they "are kept ignorant of their own fates, while family members
are deprived of knowing the whereabouts of their detained loved ones" and suffer as well the
serious economic hardship and poverty that in most cases follow the disappearance of the
household breadwinner.102
The UN General Assembly first considered the issue of "Disappeared Persons" in December
1978 under Resolution 33/173. The Resolution expressed the General Assembly’s deep
concern arising from "reports from various parts of the world relating to enforced or
involuntary disappearances," and requested the "UN Commission on Human Rights to
consider the issue of enforced disappearances with a view to making appropriate
recommendations."103
In 1992, in response to the reality that the insidious practice of enforced disappearance had
become a global phenomenon, the UN General Assembly adopted the Declaration on the
Protection of All Persons from Enforced Disappearance (Declaration).104 This Declaration, for
the first time, provided in its third preambular clause a working description of enforced
disappearance, as follows:
Deeply concerned that in many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested, detained or abducted against
their will or otherwise deprived of their liberty by officials of different branches or levels of
Government, or by organized groups or private individuals acting on behalf of, or with the
support, direct or indirect, consent or acquiescence of the Government, followed by a refusal
to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the
deprivation of their liberty, which places such persons outside the protection of the law.
[Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the
International Convention for the Protection of All Persons from Enforced Disappearance
(Convention).105 The Convention was opened for signature in Paris, France on February 6,
2007.106 Article 2 of the Convention defined enforced disappearance as follows:
For the purposes of this Convention, "enforced disappearance" is considered to be the arrest,
detention, abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or acquiescence of the
State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the
fate or whereabouts of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there is a right not
to be subject to enforced disappearance107 and that this right is non-derogable.108 It provides
that no one shall be subjected to enforced disappearance under any circumstances, be it a
state of war, internal political instability, or any other public emergency. It obliges State
Parties to codify enforced disappearance as an offense punishable with appropriate penalties
under their criminal law.109 It also recognizes the right of relatives of the disappeared persons
and of the society as a whole to know the truth on the fate and whereabouts of the
disappeared and on the progress and results of the investigation.110 Lastly, it classifies
enforced disappearance as a continuing offense, such that statutes of limitations shall not
apply until the fate and whereabouts of the victim are established. 111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that the country is
not yet committed to enact any law penalizing enforced disappearance as a crime. The
absence of a specific penal law, however, is not a stumbling block for action from this Court,
as heretofore mentioned; underlying every enforced disappearance is a violation of the
constitutional rights to life, liberty and security that the Supreme Court is mandated by the
Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is guided, in acting
on Amparo cases, by the reality that the Philippines is a member of the UN, bound by its
Charter and by the various conventions we signed and ratified, particularly the conventions
touching on humans rights. Under the UN Charter, the Philippines pledged to "promote
universal respect for, and observance of, human rights and fundamental freedoms for all
without distinctions as to race, sex, language or religion."112 Although no universal agreement
has been reached on the precise extent of the "human rights and fundamental freedoms"
guaranteed to all by the Charter,113 it was the UN itself that issued the Declaration on
enforced disappearance, and this Declaration states:114
Any act of enforced disappearance is an offence to dignity. It is condemned as a denial of the
purposes of the Charter of the United Nations and as a grave and flagrant violation of human
rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights
and reaffirmed and developed in international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter made in a UN
Declaration, the ban on enforced disappearance cannot but have its effects on the country,
given our own adherence to "generally accepted principles of international law as part of the
law of the land."115
In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque
III,116 we held that:
Under the 1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation. The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such
as local legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law. [Emphasis
supplied]
We characterized "generally accepted principles of international law" as norms of general or
customary international law that are binding on all states. We held further:117
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is rendered obligatory by the existence
of a rule of law requiring it. [Emphasis in the original]
The most widely accepted statement of sources of international law today is Article 38(1) of
the Statute of the International Court of Justice, which provides that the Court shall apply
"international custom, as evidence of a general practice accepted as law."118 The material
sources of custom include State practice, State legislation, international and national judicial
decisions, recitals in treaties and other international instruments, a pattern of treaties in the
same form, the practice of international organs, and resolutions relating to legal questions in
the UN General Assembly.119 Sometimes referred to as "evidence" of international law,120
these sources identify the substance and content of the obligations of States and are
indicative of the "State practice" and "opinio juris" requirements of international law.121 We
note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization of American
States (OAS) General Assembly adopted the Inter-American Convention on Enforced
Disappearance of Persons in June 1994.122 State parties undertook under this Convention
"not to practice, permit, or tolerate the forced disappearance of persons, even in states of
emergency or suspension of individual guarantees."123 One of the key provisions includes the
States’ obligation to enact the crime of forced disappearance in their respective national
criminal laws and to establish jurisdiction over such cases when the crime was committed
within their jurisdiction, when the victim is a national of that State, and "when the alleged
criminal is within its territory and it does not proceed to extradite him," which can be
interpreted as establishing universal jurisdiction among the parties to the Inter-American
Convention.124 At present, Colombia, Guatemala, Paraguay, Peru and Venezuela have
enacted separate laws in accordance with the Inter-American Convention and have defined
activities involving enforced disappearance to be criminal.1251avvphi1
Second, in Europe, the European Convention on Human Rights has no explicit provision
dealing with the protection against enforced disappearance. The European Court of Human
Rights (ECHR), however, has applied the Convention in a way that provides ample protection
for the underlying rights affected by enforced disappearance through the Convention’s Article
2 on the right to life; Article 3 on the prohibition of torture; Article 5 on the right to liberty and
security; Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the right to an
effective remedy. A leading example demonstrating the protection afforded by the European
Convention is Kurt v. Turkey,126 where the ECHR found a violation of the right to liberty and
security of the disappeared person when the applicant’s son disappeared after being taken
into custody by Turkish forces in the Kurdish village of Agilli in November 1993. It further
found the applicant (the disappeared person’s mother) to be a victim of a violation of Article 3,
as a result of the silence of the authorities and the inadequate character of the investigations
undertaken. The ECHR also saw the lack of any meaningful investigation by the State as a
violation of Article 13.127
Third, in the United States, the status of the prohibition on enforced disappearance as part of
customary international law is recognized in the most recent edition of Restatement of the
Law: The Third,128 which provides that "[a] State violates international law if, as a matter of
State policy, it practices, encourages, or condones… (3) the murder or causing the
disappearance of individuals."129 We significantly note that in a related matter that finds close
identification with enforced disappearance – the matter of torture – the United States Court of
Appeals for the Second Circuit Court held in Filartiga v. Pena-Irala130 that the prohibition on
torture had attained the status of customary international law. The court further elaborated on
the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great precision the
obligations of member nations under the Charter. Since their adoption, "(m)embers can no
longer contend that they do not know what human rights they promised in the Charter to
promote." Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal
and solemn instrument, suitable for rare occasions when principles of great and lasting
importance are being enunciated." Accordingly, it has been observed that the Universal
Declaration of Human Rights "no longer fits into the dichotomy of ‘binding treaty’ against ‘non-
binding pronouncement,' but is rather an authoritative statement of the international
community." Thus, a Declaration creates an expectation of adherence, and "insofar as the
expectation is gradually justified by State practice, a declaration may by custom become
recognized as laying down rules binding upon the States." Indeed, several commentators
have concluded that the Universal Declaration has become, in toto, a part of binding,
customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International
Convention on Civil and Political Rights (ICCPR), to which the Philippines is both a signatory
and a State Party, the UN Human Rights Committee, under the Office of the High
Commissioner for Human Rights, has stated that the act of enforced disappearance violates
Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or
punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act may
also amount to a crime against humanity.131
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International Criminal
Court (ICC) also covers enforced disappearances insofar as they are defined as crimes
against humanity,132 i.e., crimes "committed as part of a widespread or systematic attack
against any civilian population, with knowledge of the attack." While more than 100 countries
have ratified the Rome Statute,133 the Philippines is still merely a signatory and has not yet
ratified it. We note that Article 7(1) of the Rome Statute has been incorporated in the statutes
of other international and hybrid tribunals, including Sierra Leone Special Court, the Special
Panels for Serious Crimes in Timor-Leste, and the Extraordinary Chambers in the Courts of
Cambodia.134 In addition, the implementing legislation of State Parties to the Rome Statute of
the ICC has given rise to a number of national criminal provisions also covering enforced
disappearance.135
While the Philippines is not yet formally bound by the terms of the Convention on enforced
disappearance (or by the specific terms of the Rome Statute) and has not formally declared
enforced disappearance as a specific crime, the above recital shows that enforced
disappearance as a State practice has been repudiated by the international community, so
that the ban on it is now a generally accepted principle of international law, which we should
consider a part of the law of the land, and which we should act upon to the extent already
allowed under our laws and the international conventions that bind us.
The following civil or political rights under the Universal Declaration of Human Rights, the
ICCPR and the International Convention on Economic, Social and Cultural Rights (ICESR)
may be infringed in the course of a disappearance:136
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any
other competent authority provided for by the legal system of the State, and to
develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the right to an
effective remedy under Article 2 of the ICCPR includes the obligation of the State to
investigate ICCPR violations promptly, thoroughly, and effectively, viz: 137
15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights,
States Parties must ensure that individuals also have accessible and effective remedies to
vindicate those rights… The Committee attaches importance to States Parties' establishing
appropriate judicial and administrative mechanisms for addressing claims of rights violations
under domestic law… Administrative mechanisms are particularly required to give effect to
the general obligation to investigate allegations of violations promptly, thoroughly and
effectively through independent and impartial bodies. A failure by a State Party to investigate
allegations of violations could in and of itself give rise to a separate breach of the Covenant.
Cessation of an ongoing violation is an essential element of the right to an effective remedy.
[Emphasis supplied]
The UN Human Rights Committee further stated in the same General Comment No. 31 that
failure to investigate as well as failure to bring to justice the perpetrators of ICCPR violations
could in and of itself give rise to a separate breach of the Covenant, thus: 138
18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant
rights, States Parties must ensure that those responsible are brought to justice. As with
failure to investigate, failure to bring to justice perpetrators of such violations could in and of
itself give rise to a separate breach of the Covenant. These obligations arise notably in
respect of those violations recognized as criminal under either domestic or international law,
such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and
arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6).
Indeed, the problem of impunity for these violations, a matter of sustained concern by the
Committee, may well be an important contributing element in the recurrence of the violations.
When committed as part of a widespread or systematic attack on a civilian population, these
violations of the Covenant are crimes against humanity (see Rome Statute of the
International Criminal Court, article 7). [Emphasis supplied]
In Secretary of National Defense v. Manalo,139 this Court, in ruling that the right to security of
persons is a guarantee of the protection of one’s right by the government, held that:
The right to security of person in this third sense is a corollary of the policy that the State
"guarantees full respect for human rights" under Article II, Section 11 of the 1987
Constitution. As the government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these rights especially when they are
under threat. Protection includes conducting effective investigations, organization of
the government apparatus to extend protection to victims of extralegal killings or
enforced disappearances (or threats thereof) and/or their families, and bringing
offenders to the bar of justice. The Inter-American Court of Human Rights stressed the
importance of investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have an objective and be assumed by the
State as its own legal duty, not as a step taken by private interests that depends upon the
initiative of the victim or his family or upon their offer of proof, without an effective search for
the truth by the government. [Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the "right to security"
not only as a prohibition on the State against arbitrary deprivation of liberty, but also as the
imposition of a positive duty to afford protection to the right to liberty. The Court notably
quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the very
purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed
control over that individual, it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take
effective measures to safeguard against the risk of disappearance and to conduct a prompt
effective investigation into an arguable claim that a person has been taken into custody and
has not been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which the
Court made effective on October 24, 2007. Although the Amparo Rule still has gaps waiting
to be filled through substantive law, as evidenced primarily by the lack of a concrete definition
of "enforced disappearance," the materials cited above, among others, provide ample
guidance and standards on how, through the medium of the Amparo Rule, the Court can
provide remedies and protect the constitutional rights to life, liberty and security that underlie
every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has discharged the burden of proving
the allegations of the petition for the Writ of Amparo by the degree of proof required by the
Amparo Rule, we shall discuss briefly the unique evidentiary difficulties presented by
enforced disappearance cases; these difficulties form part of the setting that the
implementation of the Amparo Rule shall encounter.
These difficulties largely arise because the State itself – the party whose involvement is
alleged – investigates enforced disappearances. Past experiences in other jurisdictions show
that the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the direct perpetrators. 141
Experts note that abductors are well organized, armed and usually members of the military or
police forces, thus:
The victim is generally arrested by the security forces or by persons acting under some form
of governmental authority. In many countries the units that plan, implement and execute the
program are generally specialized, highly-secret bodies within the armed or security forces.
They are generally directed through a separate, clandestine chain of command, but they have
the necessary credentials to avoid or prevent any interference by the "legal" police forces.
These authorities take their victims to secret detention centers where they subject them to
interrogation and torture without fear of judicial or other controls.142
In addition, there are usually no witnesses to the crime; if there are, these witnesses are
usually afraid to speak out publicly or to testify on the disappearance out of fear for their own
lives.143 We have had occasion to note this difficulty in Secretary of Defense v. Manalo144
when we acknowledged that "where powerful military officers are implicated, the hesitation of
witnesses to surface and testify against them comes as no surprise."
Second, deliberate concealment of pertinent evidence of the disappearance is a distinct
possibility; the central piece of evidence in an enforced disappearance – i.e., the corpus
delicti or the victim’s body – is usually concealed to effectively thwart the start of any
investigation or the progress of one that may have begun.145 The problem for the victim’s
family is the State’s virtual monopoly of access to pertinent evidence. The Inter-American
Court of Human Rights (IACHR) observed in the landmark case of Velasquez Rodriguez146
that inherent to the practice of enforced disappearance is the deliberate use of the State’s
power to destroy the pertinent evidence. The IACHR described the concealment as a clear
attempt by the State to commit the perfect crime.147
Third is the element of denial; in many cases, the State authorities deliberately deny that the
enforced disappearance ever occurred.148 "Deniability" is central to the policy of enforced
disappearances, as the absence of any proven disappearance makes it easier to escape the
application of legal standards ensuring the victim’s human rights.149 Experience shows that
government officials typically respond to requests for information about desaparecidos by
saying that they are not aware of any disappearance, that the missing people may have fled
the country, or that their names have merely been invented.150
These considerations are alive in our minds, as these are the difficulties we confront, in one
form or another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding and
the degree and burden of proof the parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary. However, the
court, justice or judge may call for a preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish
their claims by substantial evidence.
The respondent who is a private individual must prove that ordinary diligence as required by
applicable laws, rules and regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove that extraordinary diligence
as required by applicable laws, rules and regulations was observed in the performance of
duty.
The respondent public official or employee cannot invoke the presumption that official duty
has been regularly performed or evade responsibility or liability.
Section 18. Judgment. – … If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and
appropriate; otherwise, the privilege shall be denied. [Emphasis supplied]
These characteristics – namely, of being summary and the use of substantial evidence as the
required level of proof (in contrast to the usual preponderance of evidence or proof beyond
reasonable doubt in court proceedings) – reveal the clear intent of the framers of the Amparo
Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in
addressing Amparo situations. The standard of diligence required – the duty of public officials
and employees to observe extraordinary diligence – point, too, to the extraordinary measures
expected in the protection of constitutional rights and in the consequent handling and
investigation of extra-judicial killings and enforced disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the
substance and form requirements of a Writ of Amparo petition, as discussed above, and
prove the allegations by substantial evidence. Once a rebuttable case has been proven, the
respondents must then respond and prove their defenses based on the standard of diligence
required. The rebuttable case, of course, must show that an enforced disappearance took
place under circumstances showing a violation of the victim’s constitutional rights to life,
liberty or security, and the failure on the part of the investigating authorities to appropriately
respond.
The landmark case of Ang Tibay v. Court of Industrial Relations 151 provided the Court its first
opportunity to define the substantial evidence required to arrive at a valid decision in
administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. [citations omitted] The
statute provides that ‘the rules of evidence prevailing in courts of law and equity shall not be
controlling.’ The obvious purpose of this and similar provisions is to free administrative boards
from the compulsion of technical rules so that the mere admission of matter which would be
deemed incompetent in judicial proceedings would not invalidate the administrative order.
[citations omitted] But this assurance of a desirable flexibility in administrative procedure does
not go so far as to justify orders without a basis in evidence having rational probative force.
[Emphasis supplied]
In Secretary of Defense v. Manalo,152 which was the Court’s first petition for a Writ of Amparo,
we recognized that the full and exhaustive proceedings that the substantial evidence
standard regularly requires do not need to apply due to the summary nature of Amparo
proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate reliefs available to
the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable
doubt, or liability for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and exhaustive proceedings.
[Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the unique
difficulties presented by the nature of enforced disappearances, heretofore discussed, which
difficulties this Court must frontally meet if the Amparo Rule is to be given a chance to
achieve its objectives. These evidentiary difficulties compel the Court to adopt standards
appropriate and responsive to the circumstances, without transgressing the due process
requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,153 the IACHR – faced with a lack of direct
evidence that the government of Honduras was involved in Velasquez Rodriguez’
disappearance – adopted a relaxed and informal evidentiary standard, and established the
rule that presumes governmental responsibility for a disappearance if it can be proven that
the government carries out a general practice of enforced disappearances and the specific
case can be linked to that practice.154 The IACHR took note of the realistic fact that enforced
disappearances could be proven only through circumstantial or indirect evidence or by logical
inference; otherwise, it was impossible to prove that an individual had been made to
disappear. It held:
130. The practice of international and domestic courts shows that direct evidence, whether
testimonial or documentary, is not the only type of evidence that may be legitimately
considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may
be considered, so long as they lead to conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in allegations of
disappearances, because this type of repression is characterized by an attempt to suppress
all information about the kidnapping or the whereabouts and fate of the victim. [Emphasis
supplied]
In concluding that the disappearance of Manfredo Velásquez (Manfredo) was carried out by
agents who acted under cover of public authority, the IACHR relied on circumstantial
evidence including the hearsay testimony of Zenaida Velásquez, the victim’s sister, who
described Manfredo’s kidnapping on the basis of conversations she had with witnesses who
saw Manfredo kidnapped by men in civilian clothes in broad daylight. She also told the Court
that a former Honduran military official had announced that Manfredo was kidnapped by a
special military squadron acting under orders of the Chief of the Armed Forces. 155 The IACHR
likewise considered the hearsay testimony of a second witness who asserted that he had
been told by a Honduran military officer about the disappearance, and a third witness who
testified that he had spoken in prison to a man who identified himself as Manfredo. 156
Velasquez stresses the lesson that flexibility is necessary under the unique circumstances
that enforced disappearance cases pose to the courts; to have an effective remedy, the
standard of evidence must be responsive to the evidentiary difficulties faced. On the one
hand, we cannot be arbitrary in the admission and appreciation of evidence, as arbitrariness
entails violation of rights and cannot be used as an effective counter-measure; we only
compound the problem if a wrong is addressed by the commission of another wrong. On the
other hand, we cannot be very strict in our evidentiary rules and cannot consider evidence the
way we do in the usual criminal and civil cases; precisely, the proceedings before us are
administrative in nature where, as a rule, technical rules of evidence are not strictly observed.
Thus, while we must follow the substantial evidence rule, we must observe flexibility in
considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their
totality, and to consider any evidence otherwise inadmissible under our usual rules to be
admissible if it is consistent with the admissible evidence adduced. In other words, we reduce
our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue
at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of evidence is not at all
novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on
Examination of a Child Witness157 is expressly recognized as an exception to the hearsay
rule. This Rule allows the admission of the hearsay testimony of a child describing any act or
attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to certain
prerequisites and the right of cross-examination by the adverse party. The admission of the
statement is determined by the court in light of specified subjective and objective
considerations that provide sufficient indicia of reliability of the child witness. 158 These
requisites for admission find their counterpart in the present case under the above-described
conditions for the exercise of flexibility in the consideration of evidence, including hearsay
evidence, in extrajudicial killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced disappearance within the
meaning of this term under the UN Declaration we have cited?
The Convention defines enforced disappearance as "the arrest, detention, abduction or any
other form of deprivation of liberty by agents of the State or by persons or groups of persons
acting with the authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the law."159 Under
this definition, the elements that constitute enforced disappearance are essentially fourfold: 160
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons acting with the
authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the fate
of the disappeared person; and
(d) placement of the disappeared person outside the protection of the law. [Emphasis
supplied]
We find no direct evidence indicating how the victim actually disappeared. The direct
evidence at hand only shows that Tagitis went out of the ASY Pension House after depositing
his room key with the hotel desk and was never seen nor heard of again. The undisputed
conclusion, however, from all concerned – the petitioner, Tagitis’ colleagues and even the
police authorities – is that Tagistis disappeared under mysterious circumstances and was
never seen again. The respondent injected the causal element in her petition and testimony,
as we shall discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga
abducted or arrested Tagitis. If at all, only the respondent’s allegation that Tagistis was under
CIDG Zamboanga custody stands on record, but it is not supported by any other evidence,
direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information as her bases for
her allegation that Tagistis had been placed under government custody (in contrast with
CIDG Zamboanga custody). The first was an unnamed friend in Zamboanga (later identified
as Col. Ancanan), who occupied a high position in the military and who allegedly mentioned
that Tagitis was in good hands. Nothing came out of this claim, as both the respondent
herself and her witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any
information that Tagitis was in government custody. Col. Ancanan, for his part, admitted the
meeting with the respondent but denied giving her any information about the disappearance.
The more specific and productive source of information was Col. Kasim, whom the
respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao City. To
quote the relevant portions of the respondent’s testimony:
Q: Were you able to speak to other military officials regarding the whereabouts of your
husband particularly those in charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told me that
my husband is being abducted [sic] because he is under custodial investigation because he is
allegedly "parang liason ng J.I.", sir.
Q: What is J.I.?
A: Jema’ah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of yours in that
Camp?
A: Col. Casim did not furnish me a copy of his report because he said those reports are highly
confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, ma’am.
Q: And a certain Col. Kasim told you that your husband was abducted and under custodial
investigation?
A: Yes, ma’am.
Q: And you mentioned that he showed you a report?
A: Yes, ma’am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were highly
confidential. That is a military report, ma’am.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, ma’am.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, ma’am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental, ma’am. 162
xxxx
Q: When you were told that your husband is in good hands, what was your reaction and what
did you do?
A: May binasa kasi sya that my husband has a parang meeting with other people na parang
mga terorista na mga tao. Tapos at the end of the report is [sic] under custodial investigation.
So I told him "Colonel, my husband is sick. He is diabetic at nagmemaintain yun ng gamot.
Pakisabi lang sa naghohold sa asawa ko na bigyan siya ng gamot, ma’am."163
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being held by the
CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun na
effort ko because I know that they would deny it, ma’am.164
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her testimony
that her husband was abducted and held under custodial investigation by the PNP-CIDG
Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime November 24, 2007,
who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if he can
furnish us the location of Engr. Tagitis. And he was reading this report. He told us that Engr.
Tagitis is in good hands. He is with the military, but he is not certain whether he is with the
AFP or PNP. He has this serious case. He was charged of terrorism because he was under
surveillance from January 2007 up to the time that he was abducted. He told us that he was
under custodial investigation. As I’ve said earlier, he was seen under surveillance from
January. He was seen talking to Omar Patik, a certain Santos of Bulacan who is also a Balik
Islam and charged with terrorism. He was seen carrying boxes of medicines. Then we asked
him how long will he be in custodial investigation. He said until we can get some information.
But he also told us that he cannot give us that report because it was a raw report. It was not
official, sir.
Q: You said that he was reading a report, was that report in document form, in a piece of
paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I don’t know if it was
computerized but I’m certain that it was typewritten. I’m not sure if it used computer, fax or
what, sir.
Q: When he was reading it to you, was he reading it line by line or he was reading in a
summary form?
A: Sometimes he was glancing to the report and talking to us, sir.165
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this Talipapao,
Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as I’ve mentioned, we just waited because that raw information that he
was reading to us [sic] after the custodial investigation, Engineer Tagitis will be released.
[Emphasis supplied]166
Col. Kasim never denied that he met with the respondent and her friends, and that he
provided them information based on the input of an unnamed asset. He simply claimed in his
testimony that the "informal letter" he received from his informant in Sulu did not indicate that
Tagitis was in the custody of the CIDG. He also stressed that the information he provided the
respondent was merely a "raw report" from "barangay intelligence" that still needed
confirmation and "follow up" as to its veracity.167
To be sure, the respondent’s and Mrs. Talbin’s testimonies were far from perfect, as the
petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a "military
officer" who told her that "her husband is being abducted because he is under custodial
investigation because he is allegedly ‘parang liason ng J.I.’" The petitioners also noted that
"Mrs. Talbin’s testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is
with the military, but he is not certain whether it is the PNP or AFP is not worthy of belief,
since Sr. Supt. Kasim is a high ranking police officer who would certainly know that the PNP
is not part of the military."
Upon deeper consideration of these inconsistencies, however, what appears clear to us is
that the petitioners never really steadfastly disputed or presented evidence to refute the
credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the petitioners
point out relate, more than anything else, to details that should not affect the credibility of the
respondent and Mrs. Talbin; the inconsistencies are not on material points.168 We note, for
example, that these witnesses are lay people in so far as military and police matters are
concerned, and confusion between the police and the military is not unusual. As a rule, minor
inconsistencies such as these indicate truthfulness rather than prevarication169and only tend
to strengthen their probative value, in contrast to testimonies from various witnesses
dovetailing on every detail; the latter cannot but generate suspicion that the material
circumstances they testified to were integral parts of a well thought of and prefabricated
story.170
Based on these considerations and the unique evidentiary situation in enforced
disappearance cases, we hold it duly established that Col. Kasim informed the respondent
and her friends, based on the informant’s letter, that Tagitis, reputedly a liaison for the JI and
who had been under surveillance since January 2007, was "in good hands" and under
custodial investigation for complicity with the JI after he was seen talking to one Omar Patik
and a certain "Santos" of Bulacan, a "Balik Islam" charged with terrorism. The respondent’s
and Mrs. Talbin’s testimonies cannot simply be defeated by Col. Kasim’s plain denial and his
claim that he had destroyed his informant’s letter, the critical piece of evidence that supports
or negates the parties’ conflicting claims. Col. Kasim’s admitted destruction of this letter –
effectively, a suppression of this evidence – raises the presumption that the letter, if
produced, would be proof of what the respondent claimed.171 For brevity, we shall call the
evidence of what Col. Kasim reported to the respondent to be the "Kasim evidence."
Given this evidence, our next step is to decide whether we can accept this evidence, in lieu of
direct evidence, as proof that the disappearance of Tagitis was due to action with government
participation, knowledge or consent and that he was held for custodial investigation. We note
in this regard that Col. Kasim was never quoted to have said that the custodial investigation
was by the CIDG Zamboanga. The Kasim evidence only implies government intervention
through the use of the term "custodial investigation," and does not at all point to CIDG
Zamboanga as Tagitis’ custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence – i.e., evidence
whose probative value is not based on the personal knowledge of the witnesses (the
respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of some other person
not on the witness stand (the informant).172
To say that this piece of evidence is incompetent and inadmissible evidence of what it
substantively states is to acknowledge – as the petitioners effectively suggest – that in the
absence of any direct evidence, we should simply dismiss the petition. To our mind, an
immediate dismissal for this reason is no different from a statement that the Amparo Rule –
despite its terms – is ineffective, as it cannot allow for the special evidentiary difficulties that
are unavoidably present in Amparo situations, particularly in extrajudicial killings and enforced
disappearances. The Amparo Rule was not promulgated with this intent or with the intent to
make it a token gesture of concern for constitutional rights. It was promulgated to provide
effective and timely remedies, using and profiting from local and international experiences in
extrajudicial killings and enforced disappearances, as the situation may require.
Consequently, we have no choice but to meet the evidentiary difficulties inherent in enforced
disappearances with the flexibility that these difficulties demand.1avvphi1
To give full meaning to our Constitution and the rights it protects, we hold that, as in
Velasquez, we should at least take a close look at the available evidence to determine the
correct import of every piece of evidence – even of those usually considered inadmissible
under the general rules of evidence – taking into account the surrounding circumstances and
the test of reason that we can use as basic minimum admissibility requirement. In the present
case, we should at least determine whether the Kasim evidence before us is relevant and
meaningful to the disappearance of Tagistis and reasonably consistent with other evidence in
the case.
The evidence about Tagitis’ personal circumstances surrounded him with an air of mystery.
He was reputedly a consultant of the World Bank and a Senior Honorary Counselor for the
IDB who attended a seminar in Zamboanga and thereafter proceded to Jolo for an overnight
stay, indicated by his request to Kunnong for the purchase of a return ticket to Zamboanga
the day after he arrived in Jolo. Nothing in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that
Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli later on stated
that he never accused Tagitis of taking away money held in trust, although he confirmed that
the IDB was seeking assistance in locating funds of IDB scholars deposited in Tagitis’
personal account. Other than these pieces of evidence, no other information exists in the
records relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal circumstances. While the
Amparo petition recited that he was taken away by "burly men believed to be police
intelligence operatives," no evidence whatsoever was introduced to support this allegation.
Thus, the available direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30,
2007 – the day he arrived in Jolo – and was never seen again.
The Kasim evidence assumes critical materiality given the dearth of direct evidence on the
above aspects of the case, as it supplies the gaps that were never looked into and clarified by
police investigation. It is the evidence, too, that colors a simple missing person report into an
enforced disappearance case, as it injects the element of participation by agents of the State
and thus brings into question how the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the respondent,
characterize the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong that
Tagitis could have been taken by the Abu Sayyaf or other groups fighting the government. No
evidence was ever offered on whether there was active Jolo police investigation and how and
why the Jolo police arrived at this conclusion. The respondent’s own inquiry in Jolo yielded
the answer that he was not missing but was with another woman somewhere. Again, no
evidence exists that this explanation was arrived at based on an investigation. As already
related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not
useful for evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that yielded
positive results. Col. Kasim’s story, however, confirmed only the fact of his custodial
investigation (and, impliedly, his arrest or abduction), without identifying his abductor/s or the
party holding him in custody. The more significant part of Col. Kasim’s story is that the
abduction came after Tagitis was seen talking with Omar Patik and a certain Santos of
Bulacan, a "Balik Islam" charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was
being held at Talipapao, Sulu. None of the police agencies participating in the investigation
ever pursued these leads. Notably, Task Force Tagitis to which this information was relayed
did not appear to have lifted a finger to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by the petitioners.
Then PNP Chief Gen. Avelino I. Razon merely reported the directives he sent to the ARMM
Regional Director and the Regional Chief of the CIDG on Tagitis, and these reports merely
reiterated the open-ended initial report of the disappearance. The CIDG directed a search in
all of its divisions with negative results. These, to the PNP Chief, constituted the exhaustion
"of all possible efforts." PNP-CIDG Chief General Edgardo M. Doromal, for his part, also
reported negative results after searching "all divisions and departments [of the CIDG] for a
person named Engr. Morced N. Tagitis . . . and after a diligent and thorough research,
records show that no such person is being detained in the CIDG or any of its department or
divisions." PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional
Director PC Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they
essentially reported the results of their directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA constituted
Task Force Tagitis, with specific directives on what to do. The negative results reflected in the
Returns on the writ were again replicated during the three hearings the CA scheduled. Aside
from the previously mentioned "retraction" that Prof. Matli made to correct his accusation that
Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in his testimony that
the CIDG consistently denied any knowledge or complicity in any abduction and said that
there was no basis to conclude that the CIDG or any police unit had anything to do with the
disappearance of Tagitis; he likewise considered it premature to conclude that Tagitis simply
ran away with the money in his custody. As already noted above, the Task Force notably did
not pursue any investigation about the personal circumstances of Tagitis, his background in
relation to the IDB and the background and activities of this Bank itself, and the reported
sighting of Tagistis with terrorists and his alleged custody in Talipapao, Sulu. No attempt
appears to have ever been made to look into the alleged IDB funds that Tagitis held in trust,
or to tap any of the "assets" who are indispensable in investigations of this nature. These
omissions and negative results were aggravated by the CA findings that it was only as late as
January 28, 2008 or three months after the disappearance that the police authorities
requested for clear pictures of Tagitis. Col. Kasim could not attend the trial because his
subpoena was not served, despite the fact that he was designated as Ajirim’s replacement in
the latter’s last post. Thus, Col. Kasim was not then questioned. No investigation – even an
internal one – appeared to have been made to inquire into the identity of Col. Kasim’s "asset"
and what he indeed wrote.
We glean from all these pieces of evidence and developments a consistency in the
government’s denial of any complicity in the disappearance of Tagitis, disrupted only by the
report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however,
eventually denied that he ever made the disclosure that Tagitis was under custodial
investigation for complicity in terrorism. Another distinctive trait that runs through these
developments is the government’s dismissive approach to the disappearance, starting from
the initial response by the Jolo police to Kunnong’s initial reports of the disappearance, to the
responses made to the respondent when she herself reported and inquired about her
husband’s disappearance, and even at Task Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at best haphazard since
the authorities were looking for a man whose picture they initially did not even secure. The
returns and reports made to the CA fared no better, as the CIDG efforts themselves were
confined to searching for custodial records of Tagitis in their various departments and
divisions. To point out the obvious, if the abduction of Tagitis was a "black" operation
because it was unrecorded or officially unauthorized, no record of custody would ever appear
in the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG detention
places. In sum, none of the reports on record contains any meaningful results or details on
the depth and extent of the investigation made. To be sure, reports of top police officials
indicating the personnel and units they directed to investigate can never constitute exhaustive
and meaningful investigation, or equal detailed investigative reports of the activities
undertaken to search for Tagitis. Indisputably, the police authorities from the very beginning
failed to come up to the extraordinary diligence that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasim’s disclosure, made in an
unguarded moment, unequivocally point to some government complicity in the
disappearance. The consistent but unfounded denials and the haphazard investigations
cannot but point to this conclusion. For why would the government and its officials engage in
their chorus of concealment if the intent had not been to deny what they already knew of the
disappearance? Would not an in-depth and thorough investigation that at least credibly
determined the fate of Tagitis be a feather in the government’s cap under the circumstances
of the disappearance? From this perspective, the evidence and developments, particularly
the Kasim evidence, already establish a concrete case of enforced disappearance that the
Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and quoted, 173
the evidence at hand and the developments in this case confirm the fact of the enforced
disappearance and government complicity, under a background of consistent and unfounded
government denials and haphazard handling. The disappearance as well effectively placed
Tagitis outside the protection of the law – a situation that will subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without precedent in
international enforced disappearance rulings. While the facts are not exactly the same, the
facts of this case run very close to those of Timurtas v. Turkey,174 a case decided by ECHR.
The European tribunal in that case acted on the basis of the photocopy of a "post-operation
report" in finding that Abdulvahap Timurtas (Abdulvahap) was abducted and later detained by
agents (gendarmes) of the government of Turkey. The victim's father in this case brought a
claim against Turkey for numerous violations of the European Convention, including the right
to life (Article 2) and the rights to liberty and security of a person (Article 5). The applicant
contended that on August 14, 1993, gendarmes apprehended his son, Abdulvahap for being
a leader of the Kurdish Workers’ Party (PKK) in the Silopi region. The petition was filed in
southeast Turkey nearly six and one half years after the apprehension. According to the
father, gendarmes first detained Abdulvahap and then transferred him to another detainment
facility. Although there was no eyewitness evidence of the apprehension or subsequent
detainment, the applicant presented evidence corroborating his version of events, including a
photocopy of a post-operation report signed by the commander of gendarme operations in
Silopi, Turkey. The report included a description of Abdulvahap's arrest and the result of a
subsequent interrogation during detention where he was accused of being a leader of the
PKK in the Silopi region. On this basis, Turkey was held responsible for Abdulvahap’s
enforced disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine legal setting and the
Amparo remedy this Court has established, as applied to the unique facts and developments
of this case – we believe and so hold that the government in general, through the PNP and
the PNP-CIDG, and in particular, the Chiefs of these organizations together with Col. Kasim,
should be held fully accountable for the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise
known as the "PNP Law,"175 specifies the PNP as the governmental office with the mandate
"to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to
justice and assist in their prosecution." The PNP-CIDG, as Col. Jose Volpane Pante (then
Chief of CIDG Region 9) testified, is the "investigative arm" of the PNP and is mandated to
"investigate and prosecute all cases involving violations of the Revised Penal Code,
particularly those considered as heinous crimes."176 Under the PNP organizational structure,
the PNP-CIDG is tasked to investigate all major crimes involving violations of the Revised
Penal Code and operates against organized crime groups, unless the President assigns the
case exclusively to the National Bureau of Investigation (NBI).177 No indication exists in this
case showing that the President ever directly intervened by assigning the investigation of
Tagitis’ disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the ones who
were remiss in their duties when the government completely failed to exercise the extral'>To
fully enforce the Amparo remedy, we refer this case back to the CA for appropriate
proceedings directed at the monitoring of the PNP and the PNP-CIDG investigations and
actions, and the validation of their results through hearings the CA may deem appropriate to
conduct. For purposes of these investigations, the PNP/PNP-CIDG shall initially present to
the CA a plan of action for further investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action. On behalf of this Court, the CA shall
pass upon: the need for the PNP and the PNP-CIDG to make disclosures of matters known to
them as indicated in this Decision and as further CA hearings may indicate; the petitioners’
submissions; the sufficiency of their investigative efforts; and submit to this Court a quarterly
report containing its actions and recommendations, copy furnished the petitioners and the
respondent, with the first report due at the end of the first quarter counted from the finality of
this Decision. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigation. The CA shall submit its full report for the consideration of this Court at the end
of the 4th quarter counted from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners’ petition for review on
certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated March 7,
2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced
disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and responsibility,
declaring the government (through the PNP and the PNP-CIDG) and Colonel
Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer
Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief,
directly responsible for the disclosure of material facts known to the government and
to their offices regarding the disappearance of Engineer Morced N. Tagitis, and for
the conduct of proper investigations using extraordinary diligence, with the obligation
to show investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him
accountable with the obligation to disclose information known to him and to his
"assets" in relation with the enforced disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate proceedings
directed at the monitoring of the PNP and PNP-CIDG investigations, actions and the
validation of their results; the PNP and the PNP-CIDG shall initially present to the
Court of Appeals a plan of action for further investigation, periodically reporting their
results to the Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly report with its
recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as
petitioners and the respondent, with the first report due at the end of the first quarter
counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigations; the Court of Appeals shall submit its full report for the consideration of
this Court at the end of the 4th quarter counted from the finality of this Decision;
These directives and those of the Court of Appeals’ made pursuant to this Decision shall be
given to, and shall be directly enforceable against, whoever may be the incumbent Chiefs of
the Philippine National Police and its Criminal Investigation and Detection Group, under pain
of contempt from this Court when the initiatives and efforts at disclosure and investigation
constitute less than the extraordinary diligence that the Rule on the Writ of Amparo and the
circumstances of this case demand. Given the unique nature of Amparo cases and their
varying attendant circumstances, these directives – particularly, the referral back to and
monitoring by the CA – are specific to this case and are not standard remedies that can be
applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General Alexander Yano, Commanding
General, Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task Force
Comet, Zamboanga City, is hereby AFFIRMED. SO ORDERED.
8. G.R. No. 139325 April 12, 2005
PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR. MARIANI DIMARANAN,
SFIC, and JOEL C. LAMANGAN in their behalf and on behalf of the Class Plaintiffs in Class Action No. MDL
840, United States District Court of Hawaii, Petitioner, vs. HON. SANTIAGO JAVIER RANADA, in his
capacity as Presiding Judge of Branch 137, Regional Trial Court, Makati City, and the ESTATE OF FERDINAND E. MARCOS,
through its court appointed legal representatives in Class Action MDL 840, United States District Court of Hawaii, namely:
Imelda R. Marcos and Ferdinand Marcos, Jr., Respondents.
Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding
out its bitter crop. While the restoration of freedom and the fundamental structures and
processes of democracy have been much lauded, according to a significant number, the
changes, however, have not sufficiently healed the colossal damage wrought under the
oppressive conditions of the martial law period. The cries of justice for the tortured, the
murdered, and the desaparecidos arouse outrage and sympathy in the hearts of the fair-
minded, yet the dispensation of the appropriate relief due them cannot be extended through
the same caprice or whim that characterized the ill-wind of martial rule. The damage done
was not merely personal but institutional, and the proper rebuke to the iniquitous past has to
involve the award of reparations due within the confines of the restored rule of law.
The petitioners in this case are prominent victims of human rights violations 1
who, deprived of
the opportunity to directly confront the man who once held absolute rule over this country,
have chosen to do battle instead with the earthly representative, his estate. The clash has
been for now interrupted by a trial court ruling, seemingly comported to legal logic, that
required the petitioners to pay a whopping filing fee of over Four Hundred Seventy-Two
Million Pesos (P472,000,000.00) in order that they be able to enforce a judgment awarded
them by a foreign court. There is an understandable temptation to cast the struggle within the
simplistic confines of a morality tale, and to employ short-cuts to arrive at what might seem
the desirable solution. But easy, reflexive resort to the equity principle all too often leads to a
result that may be morally correct, but legally wrong.
Nonetheless, the application of the legal principles involved in this case will comfort those
who maintain that our substantive and procedural laws, for all their perceived ambiguity and
susceptibility to myriad interpretations, are inherently fair and just. The relief sought by the
petitioners is expressly mandated by our laws and conforms to established legal principles.
The granting of this petition for certiorari is warranted in order to correct the legally infirm and
unabashedly unjust ruling of the respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a complaint was filed with the
United States District Court (US District Court), District of Hawaii, against the Estate of former
Philippine President Ferdinand E. Marcos (Marcos Estate). The action was brought forth by
ten Filipino citizens2 who each alleged having suffered human rights abuses such as arbitrary
detention, torture and rape in the hands of police or military forces during the Marcos regime. 3
The Alien Tort Act was invoked as basis for the US District Court's jurisdiction over the
complaint, as it involved a suit by aliens for tortious violations of international law. 4 These
plaintiffs brought the action on their own behalf and on behalf of a class of similarly situated
individuals, particularly consisting of all current civilian citizens of the Philippines, their heirs
and beneficiaries, who between 1972 and 1987 were tortured, summarily executed or had
disappeared while in the custody of military or paramilitary groups. Plaintiffs alleged that the
class consisted of approximately ten thousand (10,000) members; hence, joinder of all these
persons was impracticable.
The institution of a class action suit was warranted under Rule 23(a) and (b)(1)(B) of the US
Federal Rules of Civil Procedure, the provisions of which were invoked by the plaintiffs.
Subsequently, the US District Court certified the case as a class action and created three (3)
sub-classes of torture, summary execution and disappearance victims. 5 Trial ensued, and
subsequently a jury rendered a verdict and an award of compensatory and exemplary
damages in favor of the plaintiff class. Then, on 3 February 1995, the US District Court,
presided by Judge Manuel L. Real, rendered a Final Judgment (Final Judgment) awarding
the plaintiff class a total of One Billion Nine Hundred Sixty Four Million Five Thousand Eight
Hundred Fifty Nine Dollars and Ninety Cents ($1,964,005,859.90). The Final Judgment was
eventually affirmed by the US Court of Appeals for the Ninth Circuit, in a decision rendered on
17 December 1996.6
On 20 May 1997, the present petitioners filed Complaint with the Regional Trial Court, City of
Makati (Makati RTC) for the enforcement of the Final Judgment. They alleged that they are
members of the plaintiff class in whose favor the US District Court awarded damages. 7 They
argued that since the Marcos Estate failed to file a petition for certiorari with the US Supreme
Court after the Ninth Circuit Court of Appeals had affirmed the Final Judgment, the decision
of the US District Court had become final and executory, and hence should be recognized
and enforced in the Philippines, pursuant to Section 50, Rule 39 of the Rules of Court then in
force.8
On 5 February 1998, the Marcos Estate filed a motion to dismiss, raising, among others, the
non-payment of the correct filing fees. It alleged that petitioners had only paid Four Hundred
Ten Pesos (P410.00) as docket and filing fees, notwithstanding the fact that they sought to
enforce a monetary amount of damages in the amount of over Two and a Quarter Billion US
Dollars (US$2.25 Billion). The Marcos Estate cited Supreme Court Circular No. 7, pertaining
to the proper computation and payment of docket fees. In response, the petitioners claimed
that an action for the enforcement of a foreign judgment is not capable of pecuniary
estimation; hence, a filing fee of only Four Hundred Ten Pesos (P410.00) was proper,
pursuant to Section 7(c) of Rule 141.9
On 9 September 1998, respondent Judge Santiago Javier Ranada 10 of the Makati RTC
issued the subject Order dismissing the complaint without prejudice. Respondent judge
opined that contrary to the petitioners' submission, the subject matter of the complaint was
indeed capable of pecuniary estimation, as it involved a judgment rendered by a foreign court
ordering the payment of definite sums of money, allowing for easy determination of the value
of the foreign judgment. On that score, Section 7(a) of Rule 141 of the Rules of Civil In dismissing the complaint, the respondent judge relied on Section 7(a), Rule 141 as basis
Procedure would find application, and the RTC estimated the proper amount of filing fees was for the computation of the filing fee of over P472 Million. The provision states:
approximately Four Hundred Seventy Two Million Pesos, which obviously had not been paid.
SEC. 7. Clerk of Regional Trial Court.-
Not surprisingly, petitioners filed a Motion for Reconsideration, which Judge Ranada denied
in an Order dated 28 July 1999. From this denial, petitioners filed a Petition for Certiorari (a) For filing an action or a permissive counterclaim or money claim against an
under Rule 65 assailing the twin orders of respondent judge.11 They prayed for the annulment estate not based on judgment, or for filing with leave of court a third-party, fourth-
of the questioned orders, and an order directing the reinstatement of Civil Case No. 97-1052 party, etc., complaint, or a complaint in intervention, and for all clerical services in the
and the conduct of appropriate proceedings thereon. same time, if the total sum claimed, exclusive of interest, or the started value of the
property in litigation, is:
Petitioners submit that their action is incapable of pecuniary estimation as the subject matter
of the suit is the enforcement of a foreign judgment, and not an action for the collection of a
sum of money or recovery of damages. They also point out that to require the class plaintiffs 1. Less than P 100,00.00 – P 500.00
to pay Four Hundred Seventy Two Million Pesos (P472,000,000.00) in filing fees would
negate and render inutile the liberal construction ordained by the Rules of Court, as required 2. P 100,000.00 or more but less than P 150,000.00 – P 800.00
by Section 6, Rule 1 of the Rules of Civil Procedure, particularly the inexpensive disposition
3. P 150,000.00 or more but less than P 200,000.00 – P 1,000.00
of every action.
4. P 200,000.00 or more but less than P 250,000.00 – P 1,500.00
Petitioners invoke Section 11, Article III of the Bill of Rights of the Constitution, which
provides that "Free access to the courts and quasi-judicial bodies and adequate legal 5. P 250,000.00 or more but less than P 300,00.00 – P 1,750.00
assistance shall not be denied to any person by reason of poverty," a mandate which is
essentially defeated by the required exorbitant filing fee. The adjudicated amount of the filing 6. P 300,000.00 or more but not more than P 400,000.00 – P 2,000.00
fee, as arrived at by the RTC, was characterized as indisputably unfair, inequitable, and
unjust. 7. P 350,000.00 or more but not more than P400,000.00 – P 2,250.00

The Commission on Human Rights (CHR) was permitted to intervene in this case. 12 It urged 8. For each P 1,000.00 in excess of P 400,000.00 – P 10.00
that the petition be granted and a judgment rendered, ordering the enforcement and
execution of the District Court judgment in accordance with Section 48, Rule 39 of the 1997 (Emphasis supplied)
Rules of Civil Procedure. For the CHR, the Makati RTC erred in interpreting the action for the
execution of a foreign judgment as a new case, in violation of the principle that once a case
Obviously, the above-quoted provision covers, on one hand, ordinary actions, permissive
has been decided between the same parties in one country on the same issue with finality, it
counterclaims, third-party, etc. complaints and complaints-in-interventions, and on the other,
can no longer be relitigated again in another country.13 The CHR likewise invokes the
money claims against estates which are not based on judgment. Thus, the relevant question
principle of comity, and of vested rights.
for purposes of the present petition is whether the action filed with the lower court is a "money
claim against an estate not based on judgment."
The Court's disposition on the issue of filing fees will prove a useful jurisprudential guidepost
for courts confronted with actions enforcing foreign judgments, particularly those lodged
Petitioners' complaint may have been lodged against an estate, but it is clearly based on a
against an estate. There is no basis for the issuance a limited pro hac vice ruling based on
judgment, the Final Judgment of the US District Court. The provision does not make any
the special circumstances of the petitioners as victims of martial law, or on the emotionally-
distinction between a local judgment and a foreign judgment, and where the law does not
charged allegation of human rights abuses.
distinguish, we shall not distinguish.
An examination of Rule 141 of the Rules of Court readily evinces that the respondent judge
A reading of Section 7 in its entirety reveals several instances wherein the filing fee is
ignored the clear letter of the law when he concluded that the filing fee be computed based
computed on the basis of the amount of the relief sought, or on the value of the property in
on the total sum claimed or the stated value of the property in litigation.
litigation. The filing fee for requests for extrajudicial foreclosure of mortgage is based on the
amount of indebtedness or the mortgagee's claim.14 In special proceedings involving
properties such as for the allowance of wills, the filing fee is again based on the value of the
property.15 The aforecited rules evidently have no application to petitioners' complaint.
Petitioners rely on Section 7(b), particularly the proviso on actions where the value of the
subject matter cannot be estimated. The provision reads in full:
SEC. 7. Clerk of Regional Trial Court.-
(b) For filing
1. Actions where the value of the subject matter cannot be estimated --- P 600.00
2. Special civil actions except judicial foreclosure which shall be governed by paragraph
(a) above --- P 600.00
3. All other actions not involving property --- P 600.00
In a real action, the assessed value of the property, or if there is none, the estimated value,
thereof shall be alleged by the claimant and shall be the basis in computing the fees.
It is worth noting that the provision also provides that in real actions, the assessed value or
estimated value of the property shall be alleged by the claimant and shall be the basis in
computing the fees. Yet again, this provision does not apply in the case at bar. A real action
is one where the plaintiff seeks the recovery of real property or an action affecting title to or
recovery of possession of real property.16 Neither the complaint nor the award of damages
adjudicated by the US District Court involves any real property of the Marcos Estate.
Thus, respondent judge was in clear and serious error when he concluded that the filing fees
should be computed on the basis of the schematic table of Section 7(a), as the action
involved pertains to a claim against an estate based on judgment. What provision, if any, then
should apply in determining the filing fees for an action to enforce a foreign judgment?
To resolve this question, a proper understanding is required on the nature and effects of a
foreign judgment in this jurisdiction.
The rules of comity, utility and convenience of nations have established a usage among
civilized states by which final judgments of foreign courts of competent jurisdiction are
reciprocally respected and rendered efficacious under certain conditions that may vary in
different countries.17 This principle was prominently affirmed in the leading American case of
Hilton v. Guyot18 and expressly recognized in our jurisprudence beginning with Ingenholl v.
Walter E. Olsen & Co.19 The conditions required by the Philippines for recognition and
enforcement of a foreign judgment were originally contained in Section 311 of the Code of
Civil Procedure, which was taken from the California Code of Civil Procedure which, in turn,
was derived from the California Act of March 11, 1872. 20 Remarkably, the procedural rule
now outlined in Section 48, Rule 39 of the Rules of Civil Procedure has remained unchanged
down to the last word in nearly a century. Section 48 states:
SEC. 48. Effect of foreign judgments. — The effect of a judgment of a tribunal of a
foreign country, having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the
title to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of
a right as between the parties and their successors in interest by a subsequent title;
In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.
There is an evident distinction between a foreign judgment in an action in rem and one in
personam. For an action in rem, the foreign judgment is deemed conclusive upon the title to
the thing, while in an action in personam, the foreign judgment is presumptive, and not
conclusive, of a right as between the parties and their successors in interest by a subsequent
title.21 However, in both cases, the foreign judgment is susceptible to impeachment in our
local courts on the grounds of want of jurisdiction or notice to the party, 22 collusion, fraud,23 or
clear mistake of law or fact.24 Thus, the party aggrieved by the foreign judgment is entitled to
defend against the enforcement of such decision in the local forum. It is essential that there
should be an opportunity to challenge the foreign judgment, in order for the court in this
jurisdiction to properly determine its efficacy.25
It is clear then that it is usually necessary for an action to be filed in order to enforce a foreign
judgment26, even if such judgment has conclusive effect as in the case of in rem actions, if
only for the purpose of allowing the losing party an opportunity to challenge the foreign
judgment, and in order for the court to properly determine its efficacy.27 Consequently, the
party attacking a foreign judgment has the burden of overcoming the presumption of its
validity.28
The rules are silent as to what initiatory procedure must be undertaken in order to enforce a
foreign judgment in the Philippines. But there is no question that the filing of a civil complaint
is an appropriate measure for such purpose. A civil action is one by which a party sues
another for the enforcement or protection of a right,29 and clearly an action to enforce a
foreign judgment is in essence a vindication of a right prescinding either from a "conclusive
judgment upon title" or the "presumptive evidence of a right."30 Absent perhaps a statutory
grant of jurisdiction to a quasi-judicial body, the claim for enforcement of judgment must be
brought before the regular courts.31
There are distinctions, nuanced but discernible, between the cause of action arising from the
enforcement of a foreign judgment, and that arising from the facts or allegations that
occasioned the foreign judgment. They may pertain to the same set of facts, but there is an
essential difference in the right-duty correlatives that are sought to be vindicated. For
example, in a complaint for damages against a tortfeasor, the cause of action emanates from
the violation of the right of the complainant through the act or omission of the respondent. On
the other hand, in a complaint for the enforcement of a foreign judgment awarding damages
from the same tortfeasor, for the violation of the same right through the same manner of
action, the cause of action derives not from the tortious act but from the foreign judgment
itself.
More importantly, the matters for proof are different. Using the above example, the
complainant will have to establish before the court the tortious act or omission committed by
the tortfeasor, who in turn is allowed to rebut these factual allegations or prove extenuating
circumstances. Extensive litigation is thus conducted on the facts, and from there the right to
and amount of damages are assessed. On the other hand, in an action to enforce a foreign
judgment, the matter left for proof is the foreign judgment itself, and not the facts from which it
prescinds.
As stated in Section 48, Rule 39, the actionable issues are generally restricted to a review of
jurisdiction of the foreign court, the service of personal notice, collusion, fraud, or mistake of
fact or law. The limitations on review is in consonance with a strong and pervasive policy in
all legal systems to limit repetitive litigation on claims and issues. 32 Otherwise known as the
policy of preclusion, it seeks to protect party expectations resulting from previous litigation, to
safeguard against the harassment of defendants, to insure that the task of courts not be
increased by never-ending litigation of the same disputes, and – in a larger sense – to
promote what Lord Coke in the Ferrer's Case of 1599 stated to be the goal of all law: "rest
and quietness."33 If every judgment of a foreign court were reviewable on the merits, the
plaintiff would be forced back on his/her original cause of action, rendering immaterial the
previously concluded litigation.34
Petitioners appreciate this distinction, and rely upon it to support the proposition that the
subject matter of the complaintthe enforcement of a foreign judgmentis incapable of
pecuniary estimation. Admittedly the proposition, as it applies in this case, is counter-intuitive,
and thus deserves strict scrutiny. For in all practical intents and purposes, the matter at hand
is capable of pecuniary estimation, down to the last cent. In the assailed Order, the
respondent judge pounced upon this point without equivocation:
The Rules use the term "where the value of the subject matter cannot be estimated."
The subject matter of the present case is the judgment rendered by the foreign court
ordering defendant to pay plaintiffs definite sums of money, as and for compensatory
damages. The Court finds that the value of the foreign judgment can be estimated;
indeed, it can even be easily determined. The Court is not minded to distinguish
between the enforcement of a judgment and the amount of said judgment, and
separate the two, for purposes of determining the correct filing fees. Similarly, a
plaintiff suing on promissory note for P1 million cannot be allowed to pay only P400
filing fees (sic), on the reasoning that the subject matter of his suit is not the P1
million, but the enforcement of the promissory note, and that the value of such
"enforcement" cannot be estimated.35
The jurisprudential standard in gauging whether the subject matter of an action is capable of
pecuniary estimation is well-entrenched. The Marcos Estate cites Singsong v. Isabela
Sawmill and Raymundo v. Court of Appeals, which ruled:
[I]n determining whether an action is one the subject matter of which is not capable of
pecuniary estimation this Court has adopted the criterion of first ascertaining the
nature of the principal action or remedy sought. If it is primarily for the recovery of a
sum of money, the claim is considered capable of pecuniary estimation, and whether
jurisdiction is in the municipal courts or in the courts of first instance would depend on
the amount of the claim. However, where the basic issue is something other than the
right to recover a sum of money, where the money claim is purely incidental to, or a
consequence of, the principal relief sought, this Court has considered such actions as
cases where the subject of the litigation may not be estimated in terms of money, and
are cognizable exclusively by courts of first instance (now Regional Trial Courts).
On the other hand, petitioners cite the ponencia of Justice JBL Reyes in Lapitan v. Scandia,36
from which the rule in Singsong and Raymundo actually derives, but which incorporates this
additional nuance omitted in the latter cases:
xxx However, where the basic issue is something other than the right to recover a
sum of money, where the money claim is purely incidental to, or a consequence of,
the principal relief sought, like in suits to have the defendant perform his part of
the contract (specific performance) and in actions for support, or for
annulment of judgment or to foreclose a mortgage, this Court has considered
such actions as cases where the subject of the litigation may not be estimated in
terms of money, and are cognizable exclusively by courts of first instance. 37
Petitioners go on to add that among the actions the Court has recognized as being incapable
of pecuniary estimation include legality of conveyances and money deposits,38 validity of a
mortgage,39 the right to support,40 validity of documents,41 rescission of contracts,42 specific
performance,43 and validity or annulment of judgments.44 It is urged that an action for
enforcement of a foreign judgment belongs to the same class.
This is an intriguing argument, but ultimately it is self-evident that while the subject matter of
the action is undoubtedly the enforcement of a foreign judgment, the effect of a providential
award would be the adjudication of a sum of money. Perhaps in theory, such an action is
primarily for "the enforcement of the foreign judgment," but there is a certain obtuseness to
that sort of argument since there is no denying that the enforcement of the foreign judgment
will necessarily result in the award of a definite sum of money.
But before we insist upon this conclusion past beyond the point of reckoning, we must
examine its possible ramifications. Petitioners raise the point that a declaration that an action
for enforcement of foreign judgment may be capable of pecuniary estimation might lead to an
instance wherein a first level court such as the Municipal Trial Court would have jurisdiction to
enforce a foreign judgment. But under the statute defining the jurisdiction of first level courts,
B.P. 129, such courts are not vested with jurisdiction over actions for the enforcement of
foreign judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in civil cases. — Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate
and intestate, including the grant of provisional remedies in proper cases, where the
value of the personal property, estate, or amount of the demand does not exceed
One hundred thousand pesos (P100,000.00) or, in Metro Manila where such
personal property, estate, or amount of the demand does not exceed Two hundred
thousand pesos (P200,000.00) exclusive of interest damages of whatever kind,
attorney's fees, litigation expenses, and costs, the amount of which must be
specifically alleged: Provided, That where there are several claims or causes of
action between the same or different parties, embodied in the same complaint, the
amount of the demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or different
transactions;
(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer:
Provided, That when, in such cases, the defendant raises the question of ownership
in his pleadings and the question of possession cannot be resolved without deciding
the issue of ownership, the issue of ownership shall be resolved only to determine
the issue of possession.
(3) Exclusive original jurisdiction in all civil actions which involve title to, or
possession of, real property, or any interest therein where the assessed value of the
property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or,
in civil actions in Metro Manila, where such assessed value does not exceed Fifty
thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses and costs: Provided, That value of such property
shall be determined by the assessed value of the adjacent lots.45
Section 33 of B.P. 129 refers to instances wherein the cause of action or subject matter
pertains to an assertion of rights and interests over property or a sum of money. But as earlier
pointed out, the subject matter of an action to enforce a foreign judgment is the foreign
judgment itself, and the cause of action arising from the adjudication of such judgment.
An examination of Section 19(6), B.P. 129 reveals that the instant complaint for enforcement
of a foreign judgment, even if capable of pecuniary estimation, would fall under the
jurisdiction of the Regional Trial Courts, thus negating the fears of the petitioners. Indeed, an
examination of the provision indicates that it can be relied upon as jurisdictional basis with
respect to actions for enforcement of foreign judgments, provided that no other court or office
is vested jurisdiction over such complaint:
Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts shall exercise exclusive
original jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or
body exercising jurisdiction or any court, tribunal, person or body exercising judicial
or quasi-judicial functions.
Thus, we are comfortable in asserting the obvious, that the complaint to enforce the US
District Court judgment is one capable of pecuniary estimation. But at the same time, it is also
an action based on judgment against an estate, thus placing it beyond the ambit of Section
7(a) of Rule 141. What provision then governs the proper computation of the filing fees over
the instant complaint? For this case and other similarly situated instances, we find that it is
covered by Section 7(b)(3), involving as it does, "other actions not involving property."
Notably, the amount paid as docket fees by the petitioners on the premise that it was an
action incapable of pecuniary estimation corresponds to the same amount required for "other
actions not involving property." The petitioners thus paid the correct amount of filing fees, and
it was a grave abuse of discretion for respondent judge to have applied instead a clearly
inapplicable rule and dismissed the complaint.
There is another consideration of supreme relevance in this case, one which should disabuse
the notion that the doctrine affirmed in this decision is grounded solely on the letter of the
procedural rule. We earlier adverted to the the internationally recognized policy of
preclusion,46 as well as the principles of comity, utility and convenience of nations 47 as the
basis for the evolution of the rule calling for the recognition and enforcement of foreign
judgments. The US Supreme Court in Hilton v. Guyot48 relied heavily on the concept of
comity, as especially derived from the landmark treatise of Justice Story in his Commentaries
on the Conflict of Laws of 1834.49 Yet the notion of "comity" has since been criticized as one
"of dim contours"50 or suffering from a number of fallacies.51 Other conceptual bases for the
recognition of foreign judgments have evolved such as the vested rights theory or the modern
doctrine of obligation.52
There have been attempts to codify through treaties or multilateral agreements the standards
for the recognition and enforcement of foreign judgments, but these have not borne fruition.
The members of the European Common Market accede to the Judgments Convention,
signed in 1978, which eliminates as to participating countries all of such obstacles to
recognition such as reciprocity and révision au fond.53 The most ambitious of these attempts
is the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters, prepared in 1966 by the Hague Conference of International Law. 54
While it has not received the ratifications needed to have it take effect,55 it is recognized as
representing current scholarly thought on the topic.56 Neither the Philippines nor the United
States are signatories to the Convention.
Yet even if there is no unanimity as to the applicable theory behind the recognition and
enforcement of foreign judgments or a universal treaty rendering it obligatory force, there is
consensus that the viability of such recognition and enforcement is essential. Steiner and
Vagts note:
. . . The notion of unconnected bodies of national law on private international law,
each following a quite separate path, is not one conducive to the growth of a
transnational community encouraging travel and commerce among its members.
There is a contemporary resurgence of writing stressing the identity or similarity of
the values that systems of public and private international law seek to further – a
community interest in common, or at least reasonable, rules on these matters in
national legal systems. And such generic principles as reciprocity play an important
role in both fields.57
Salonga, whose treatise on private international law is of worldwide renown, points out:
Whatever be the theory as to the basis for recognizing foreign judgments, there can
be little dispute that the end is to protect the reasonable expectations and demands
of the parties. Where the parties have submitted a matter for adjudication in the court
of one state, and proceedings there are not tainted with irregularity, they may fairly be
expected to submit, within the state or elsewhere, to the enforcement of the judgment
issued by the court.58
There is also consensus as to the requisites for recognition of a foreign judgment and the
defenses against the enforcement thereof. As earlier discussed, the exceptions enumerated
in Section 48, Rule 39 have remain unchanged since the time they were adapted in this
jurisdiction from long standing American rules. The requisites and exceptions as delineated
under Section 48 are but a restatement of generally accepted principles of international law.
Section 98 of The Restatement, Second, Conflict of Laws, states that "a valid judgment
rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in
the United States," and on its face, the term "valid" brings into play requirements such notions
as valid jurisdiction over the subject matter and parties.59 Similarly, the notion that fraud or
collusion may preclude the enforcement of a foreign judgment finds affirmation with foreign
jurisprudence and commentators,60 as well as the doctrine that the foreign judgment must not
constitute "a clear mistake of law or fact."61 And finally, it has been recognized that "public
policy" as a defense to the recognition of judgments serves as an umbrella for a variety of
concerns in international practice which may lead to a denial of recognition. 62
The viability of the public policy defense against the enforcement of a foreign judgment has
been recognized in this jurisdiction.63 This defense allows for the application of local
standards in reviewing the foreign judgment, especially when such judgment creates only a
presumptive right, as it does in cases wherein the judgment is against a person. 64 The
defense is also recognized within the international sphere, as many civil law nations adhere
to a broad public policy exception which may result in a denial of recognition when the foreign
court, in the light of the choice-of-law rules of the recognizing court, applied the wrong law to
the case.65 The public policy defense can safeguard against possible abuses to the easy
resort to offshore litigation if it can be demonstrated that the original claim is noxious to our
constitutional values.
There is no obligatory rule derived from treaties or conventions that requires the Philippines
to recognize foreign judgments, or allow a procedure for the enforcement thereof. However,
generally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty
obligations.66 The classical formulation in international law sees those customary rules
accepted as binding result from the combination two elements: the established, widespread,
and consistent practice on the part of States; and a psychological element known as the
opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is
a belief that the practice in question is rendered obligatory by the existence of a rule of law
requiring it.67
While the definite conceptual parameters of the recognition and enforcement of foreign
judgments have not been authoritatively established, the Court can assert with certainty that
such an undertaking is among those generally accepted principles of international law. 68 As
earlier demonstrated, there is a widespread practice among states accepting in principle the
need for such recognition and enforcement, albeit subject to limitations of varying degrees.
The fact that there is no binding universal treaty governing the practice is not indicative of a
widespread rejection of the principle, but only a disagreement as to the imposable specific
rules governing the procedure for recognition and enforcement.
Aside from the widespread practice, it is indubitable that the procedure for recognition and
enforcement is embodied in the rules of law, whether statutory or jurisprudential, adopted in
various foreign jurisdictions. In the Philippines, this is evidenced primarily by Section 48, Rule
39 of the Rules of Court which has existed in its current form since the early 1900s. Certainly,
the Philippine legal system has long ago accepted into its jurisprudence and procedural rules
the viability of an action for enforcement of foreign judgment, as well as the requisites for
such valid enforcement, as derived from internationally accepted doctrines. Again, there may
be distinctions as to the rules adopted by each particular state,69 but they all prescind from
the premise that there is a rule of law obliging states to allow for, however generally, the
recognition and enforcement of a foreign judgment. The bare principle, to our mind, has
attained the status of opinio juris in international practice.
This is a significant proposition, as it acknowledges that the procedure and requisites outlined
in Section 48, Rule 39 derive their efficacy not merely from the procedural rule, but by virtue
of the incorporation clause of the Constitution. Rules of procedure are promulgated by the
Supreme Court,70 and could very well be abrogated or revised by the high court itself. Yet the
Supreme Court is obliged, as are all State components, to obey the laws of the land,
including generally accepted principles of international law which form part thereof, such as
those ensuring the qualified recognition and enforcement of foreign judgments. 71
Thus, relative to the enforcement of foreign judgments in the Philippines, it emerges that
there is a general right recognized within our body of laws, and affirmed by the Constitution,
to seek recognition and enforcement of foreign judgments, as well as a right to defend
against such enforcement on the grounds of want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
The preclusion of an action for enforcement of a foreign judgment in this country merely due
to an exhorbitant assessment of docket fees is alien to generally accepted practices and
principles in international law. Indeed, there are grave concerns in conditioning the amount of
the filing fee on the pecuniary award or the value of the property subject of the foreign
decision. Such pecuniary award will almost certainly be in foreign denomination, computed in
accordance with the applicable laws and standards of the forum.72 The vagaries of inflation,
as well as the relative low-income capacity of the Filipino, to date may very well translate into
an award virtually unenforceable in this country, despite its integral validity, if the docket fees
for the enforcement thereof were predicated on the amount of the award sought to be
enforced. The theory adopted by respondent judge and the Marcos Estate may even lead to
absurdities, such as if applied to an award involving real property situated in places such as
the United States or Scandinavia where real property values are inexorably high. We cannot
very well require that the filing fee be computed based on the value of the foreign property as
determined by the standards of the country where it is located.
As crafted, Rule 141 of the Rules of Civil Procedure avoids unreasonableness, as it
recognizes that the subject matter of an action for enforcement of a foreign judgment is the
foreign judgment itself, and not the right-duty correlatives that resulted in the foreign
judgment. In this particular circumstance, given that the complaint is lodged against an
estate and is based on the US District Court's Final Judgment, this foreign judgment may, for
purposes of classification under the governing procedural rule, be deemed as subsumed
under Section 7(b)(3) of Rule 141, i.e., within the class of "all other actions not involving
property." Thus, only the blanket filing fee of minimal amount is required.
Finally, petitioners also invoke Section 11, Article III of the Constitution, which states that
"[F]ree access to the courts and quasi-judicial bodies and adequate legal assistance shall not
be denied to any person by reason of poverty." Since the provision is among the guarantees
ensured by the Bill of Rights, it certainly gives rise to a demandable right. However, now is
not the occasion to elaborate on the parameters of this constitutional right. Given our
preceding discussion, it is not necessary to utilize this provision in order to grant the relief
sought by the petitioners. It is axiomatic that the constitutionality of an act will not be resolved
by the courts if the controversy can be settled on other grounds 73 or unless the resolution
thereof is indispensable for the determination of the case.74
One more word. It bears noting that Section 48, Rule 39 acknowledges that the Final
Judgment is not conclusive yet, but presumptive evidence of a right of the petitioners against
the Marcos Estate. Moreover, the Marcos Estate is not precluded to present evidence, if any,
of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or
fact. This ruling, decisive as it is on the question of filing fees and no other, does not render
verdict on the enforceability of the Final Judgment before the courts under the jurisdiction of
the Philippines, or for that matter any other issue which may legitimately be presented before
the trial court. Such issues are to be litigated before the trial court, but within the confines of
the matters for proof as laid down in Section 48, Rule 39. On the other hand, the speedy
resolution of this claim by the trial court is encouraged, and contumacious delay of the
decision on the merits will not be brooked by this Court.
WHEREFORE, the petition is GRANTED. The assailed orders are NULLIFIED and SET
ASIDE, and a new order REINSTATING Civil Case No. 97-1052 is hereby issued. No costs.
SO ORDERED.
9. G.R. No. 221697 MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
G.R. No. 221698-700 MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners, vs. COMELEC,
FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents.
Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the
Rules of Court with extremely urgent application for an ex parte issuance of temporary
restraining order/status quo ante order and/or writ of preliminary injunction assailing the
following: (1) 1 December 2015 Resolution of the Commission on Elections (COMELEC)
Second Division; (2) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No.
15-001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division; and ( 4) 23
December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No.
15-007 (DC) and SPA No. 15-139 (DC) for having been issued without jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn
infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3
September 1968. Parental care and custody over petitioner was passed on by Edgardo to his
relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968,
Emiliano reported and registered petitioner as a foundling with the Office of the Civil Registrar
of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate of Live Birth, the
petitioner was given the name "Mary Grace Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a.
Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her
adoption with the Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial
court granted their petition and ordered that petitioner's name be changed from "Mary Grace
Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although necessary
notations were made by OCR-Iloilo on petitioner's foundling certificate reflecting the court
decreed adoption,2 the petitioner's adoptive mother discovered only sometime in the second
half of 2005 that the lawyer who handled petitioner's adoption failed to secure from the OCR-
Iloilo a new Certificate of Live Birth indicating petitioner's new name and the name of her
adoptive parents. 3 Without delay, petitioner's mother executed an affidavit attesting to the
lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a
new Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with
the local COMELEC Office in San Juan City. On 13 December 1986, she received her
COMELEC Voter's Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro
Manila.5
On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F9272876 by
the Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998,
she renewed her Philippine passport and respectively secured Philippine Passport Nos.
L881511 and DD156616.7
Initially, the petitioner enrolled and pursued a degree in Development Studies at the
University of the Philippines8 but she opted to continue her studies abroad and left for the
United States of America (U.S.) in 1988. Petitioner graduated in 1991 from Boston College in
Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in Political
Studies.9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a
citizen of both the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan
City. 10 Desirous of being with her husband who was then based in the U.S., the couple flew
back to the U.S. two days after the wedding ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April
1992.12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both
born in the Philippines on 10 July 1998 and 5 June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S.
Passport No. 017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support
her father's candidacy for President in the May 2004 elections. It was during this time that she
gave birth to her youngest daughter Anika. She returned to the U.S. with her two daughters
on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back to the
Philippines upon learning of her father's deteriorating medical condition. 17 Her father slipped
into a coma and eventually expired. The petitioner stayed in the country until 3 February 2005
to take care of her father's funeral arrangements as well as to assist in the settlement of his
estate.18
According to the petitioner, the untimely demise of her father was a severe blow to her entire
family. In her earnest desire to be with her grieving mother, the petitioner and her husband
decided to move and reside permanently in the Philippines sometime in the first quarter of
2005.19 The couple began preparing for their resettlement including notification of their
children's schools that they will be transferring to Philippine schools for the next semester;20
coordination with property movers for the relocation of their household goods, furniture and
cars from the U.S. to the Philippines;21 and inquiry with Philippine authorities as to the proper
procedure to be followed in bringing their pet dog into the country.22 As early as 2004, the
petitioner already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on 24 May 200524 and without delay,
secured a Tax Identification Number from the Bureau of Internal Revenue. Her three (3)
children immediately followed25 while her husband was forced to stay in the U.S. to complete
pending projects as well as to arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until she and her husband
purchased a condominium unit with a parking slot at One Wilson Place Condominium in San
Juan City in the second half of 2005.27 The corresponding Condominium Certificates of Title
covering the unit and parking slot were issued by the Register of Deeds of San Juan City to
petitioner and her husband on 20 February 2006.28 Meanwhile, her children of school age
began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of
some of the family's remaining household belongings.29 She travelled back to the Philippines
on 11 March 2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the
family's change and abandonment of their address in the U.S.31 The family home was
eventually sold on 27 April 2006.32 Petitioner's husband resigned from his job in the U.S. in
April 2006, arrived in the country on 4 May 2006 and started working for a major Philippine
company in July 2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills,
Quezon City where they built their family home34 and to this day, is where the couple and
their children have been residing.35 A Transfer Certificate of Title covering said property was
issued in the couple's name by the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines
pursuant to Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act
of 2003.36 Under the same Act, she filed with the Bureau of Immigration (BI) a sworn petition
to reacquire Philippine citizenship together with petitions for derivative citizenship on behalf of
her three minor children on 10 July 2006.37 As can be gathered from its 18 July 2006 Order,
the BI acted favorably on petitioner's petitions and declared that she is deemed to have
reacquired her Philippine citizenship while her children are considered as citizens of the
Philippines.38 Consequently, the BI issued Identification Certificates (ICs) in petitioner's
name and in the names of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August
2006.40 She also secured from the DFA a new Philippine Passport bearing the No.
XX4731999.41 This passport was renewed on 18 March 2014 and she was issued Philippine
Passport No. EC0588861 by the DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of
the Movie and Television Review and Classification Board (MTRCB).43 Before assuming her
post, petitioner executed an "Affidavit of Renunciation of Allegiance to the United States of
America and Renunciation of American Citizenship" before a notary public in Pasig City on 20
October 2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225.45
The following day, 21 October 2010 petitioner submitted the said affidavit to the BI46 and
took her oath of office as Chairperson of the MTRCB.47 From then on, petitioner stopped
using her American passport.48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in
Manila an "Oath/Affirmation of Renunciation of Nationality of the United States."49 On that
day, she accomplished a sworn questionnaire before the U.S. Vice Consul wherein she
stated that she had taken her oath as MTRCB Chairperson on 21 October 2010 with the
intent, among others, of relinquishing her American citizenship.50 In the same questionnaire,
the petitioner stated that she had resided outside of the U.S., specifically in the Philippines,
from 3 September 1968 to 29 July 1991 and from May 2005 to present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of
Nationality of the United States" effective 21 October 2010.52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy
(COC) for Senator for the 2013 Elections wherein she answered "6 years and 6 months" to
the question "Period of residence in the Philippines before May 13, 2013."53 Petitioner
obtained the highest number of votes and was proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530.
55
On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections.
56 In her COC, the petitioner declared that she is a natural-born citizen and that her
residence in the Philippines up to the day before 9 May 2016 would be ten (10) years and
eleven (11) months counted from 24 May 2005.57 The petitioner attached to her COC an
"Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to before a
notary public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections triggered the filing of
several COMELEC cases against her which were the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a
petition to deny due course or cancel said COC which was docketed as SPA No. 15-001 (DC)
and raffled to the COMELEC Second Division.59 She is convinced that the COMELEC has
jurisdiction over her petition.60 Essentially, Elamparo's contention is that petitioner committed
material misrepresentation when she stated in her COC that she is a natural-born Filipino
citizen and that she is a resident of the Philippines for at least ten (10) years and eleven (11)
months up to the day before the 9 May 2016 Elections.61
On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a
natural-born Filipino on account of the fact that she was a foundling.62 Elamparo claimed that
international law does not confer natural-born status and Filipino citizenship on foundlings.63
Following this line of reasoning, petitioner is not qualified to apply for reacquisition of Filipino
citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen to begin with.64
Even assuming arguendo that petitioner was a natural-born Filipino, she is deemed to have
lost that status when she became a naturalized American citizen.65 According to Elamparo,
natural-born citizenship must be continuous from birth.66
On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the
sworn declaration she made in her 2012 COC for Senator wherein she indicated that she had
resided in the country for only six ( 6) years and six ( 6) months as of May 2013 Elections.
Elamparo likewise insisted that assuming arguendo that petitioner is qualified to regain her
natural-born status under R.A. No. 9225, she still fell short of the ten-year residency
requirement of the Constitution as her residence could only be counted at the earliest from
July 2006, when she reacquired Philippine citizenship under the said Act. Also on the
assumption that petitioner is qualified to reacquire lost Philippine Citizenship, Elamparo is of
the belief that she failed to reestablish her domicile in the Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a
petition for quo warranto which could only be filed if Grace Poe wins in the Presidential
elections, and that the Department of Justice (DOJ) has primary jurisdiction to revoke the
BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain allegations
which, if hypothetically admitted, would make false the statement in her COC that she is
a natural-born Filipino citizen nor was there any allegation that there was a willful or
deliberate intent to misrepresent on her part;
 (3) she did not make any material misrepresentation in the COC regarding her citizenship
and residency qualifications for:
a. the 1934 Constitutional Convention deliberations show that foundlings were
considered citizens;
b. foundlings are presumed under international law to have been born of citizens
of the place where they are found;
c. she reacquired her natural-born Philippine citizenship under the provisions of
R.A. No. 9225;
d. she executed a sworn renunciation of her American citizenship prior to the filing
of her COC for President in the May 9, 2016 Elections and that the same is in full
force and effect and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess natural-born
status;
f. residence is a matter of evidence and that she reestablished her domicile in the
Philippines as early as May 24, 2005;
g. she could reestablish residence even before she reacquired natural-born
citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for Senator was
an honest mistake, not binding and should give way to evidence on her true date
of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right of the
Filipino people to decide a purely political question, that is, should she serve as
the country's next leader.68
After the parties submitted their respective Memoranda, the petition was deemed submitted
for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that
petitioner's COC, filed for the purpose of running for the President of the Republic of the
Philippines in the 9 May 2016 National and Local Elections, contained material
representations which are false. The fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due
Course to or Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the
Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016
National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe
Llamanzares is hereby CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which
the COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the
same.70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad),
Antonio P. Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the
COMELEC which were consolidated and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure,71
docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency
and citizenship to qualify her for the Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of
unknown parentage, particularly foundlings, cannot be considered natural-born Filipino
citizens since blood relationship is determinative of natural-born status.73 Tatad invoked the
rule of statutory construction that what is not included is excluded. He averred that the fact
that foundlings were not expressly included in the categories of citizens in the 193 5
Constitution is indicative of the framers' intent to exclude them.74 Therefore, the burden lies
on petitioner to prove that she is a natural-born citizen.75
Neither can petitioner seek refuge under international conventions or treaties to support her
claim that foundlings have a nationality.76 According to Tatad, international conventions and
treaties are not self-executory and that local legislations are necessary in order to give effect
to treaty obligations assumed by the Philippines.77 He also stressed that there is no standard
state practice that automatically confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to
reacquire Philippine citizenship under R.A. No. 9225 because it only applies to former
natural-born citizens and petitioner was not as she was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the
ten (10) year residency requirement.80 Tatad opined that petitioner acquired her domicile in
Quezon City only from the time she renounced her American citizenship which was sometime
in 2010 or 2011.81 Additionally, Tatad questioned petitioner's lack of intention to abandon her
U.S. domicile as evinced by the fact that her husband stayed thereat and her frequent trips to
the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner, docketed as
SPA No. 15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225 did not
bestow upon her the status of a natural-born citizen.83 He advanced the view that former
natural-born citizens who are repatriated under the said Act reacquires only their Philippine
citizenship and will not revert to their original status as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator that she had only
been a resident of the Philippines for at least six (6) years and six (6) months prior to the 13
May 2013 Elections operates against her. Valdez rejected petitioner's claim that she could
have validly reestablished her domicile in the Philippines prior to her reacquisition of
Philippine citizenship. In effect, his position was that petitioner did not meet the ten (10) year
residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras' petition,85 docketed
as SPA No. 15-007 (DC), limited the attack to the residency issue. He claimed that
petitioner's 2015 COC for President should be cancelled on the ground that she did not
possess the ten-year period of residency required for said candidacy and that she made false
entry in her COC when she stated that she is a legal resident of the Philippines for ten (10)
years and eleven (11) months by 9 May 2016.86 Contreras contended that the reckoning
period for computing petitioner's residency in the Philippines should be from 18 July 2006, the
date when her petition to reacquire Philippine citizenship was approved by the BI.87 He
asserted that petitioner's physical presence in the country before 18 July 2006 could not be
valid evidence of reacquisition of her Philippine domicile since she was then living here as an
American citizen and as such, she was governed by the Philippine immigration laws.88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a cause of action. His
petition did not invoke grounds proper for a disqualification case as enumerated under
Sections 12 and 68 of the Omnibus Election Code.89 Instead, Tatad completely relied on the
alleged lack of residency and natural-born status of petitioner which are not among the
recognized grounds for the disqualification of a candidate to an elective office.90
Second, the petitions filed against her are basically petitions for quo warranto as they focus
on establishing her ineligibility for the Presidency.91 A petition for quo warranto falls within
the exclusive jurisdiction of the Presidential Electoral Tribunal (PET) and not the
COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen is on the
respondents.93 Otherwise stated, she has a presumption in her favor that she is a natural-
born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a nationality and
are presumed to be citizens of the country where they are found.94 Consequently, the
petitioner is considered as a natural-born citizen of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under
R.A. No. 9225 or the right to reacquire her natural-born status.96 Moreover, the official acts of
the Philippine Government enjoy the presumption of regularity, to wit: the issuance of the 18
July 2006 Order of the BI declaring her as natural-born citizen, her appointment as MTRCB
Chair and the issuance of the decree of adoption of San Juan RTC.97 She believed that all
these acts reinforced her position that she is a natural-born citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her
domicile of choice in the Philippines as demonstrated by her children's resettlement and
schooling in the country, purchase of a condominium unit in San Juan City and the
construction of their family home in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice in the
Philippines even before she renounced her American citizenship as long as the three
determinants for a change of domicile are complied with.100 She reasoned out that there was
no requirement that renunciation of foreign citizenship is a prerequisite for the acquisition of a
new domicile of choice.101
Eighth, she reiterated that the period appearing in the residency portion of her COC for
Senator was a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled
that petitioner is not a natural-born citizen, that she failed to complete the ten (10) year
residency requirement, and that she committed material misrepresentation in her COC when
she declared therein that she has been a resident of the Philippines for a period of ten (10)
years and eleven (11) months as of the day of the elections on 9 May 2016. The COMELEC
First Division concluded that she is not qualified for the elective position of President of the
Republic of the Philippines. The dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby
RESOLVES, to GRANT the Petitions and cancel the Certificate of Candidacy of MARY
GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President
of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and
National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First
Division's Resolution. On 23 December 2015, the COMELEC En Banc issued a Resolution
denying petitioner's motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of an ex parte temporary restraining
order/status quo ante order and/or writ of preliminary injunction. On 28 December 2015,
temporary restraining orders were issued by the Court enjoining the COMELEC and its
representatives from implementing the assailed COMELEC Resolutions until further orders
from the Court. The Court also ordered the consolidation of the two petitions filed by
petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held in these
cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL
and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA
No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs.
Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC)
entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez,
petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1
December 2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the
11 December 2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions emanated are
tainted with grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a
QUALIFIED CANDIDATE for President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should be denied
due course or cancelled "on the exclusive ground" that she made in the certificate a false
material representation. The exclusivity of the ground should hedge in the discretion of the
COMELEC and restrain it from going into the issue of the qualifications of the candidate for
the position, if, as in this case, such issue is yet undecided or undetermined by the proper
authority. The COMELEC cannot itself, in the same cancellation case, decide the qualification
or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX,
C, Section 2:
Section 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay officials decided by
trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving
elective municipal and barangay offices shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines,
for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible
elections.
(5) Register, after sufficient publication, political parties, organizations, or coalitions
which, in addition to other requirements, must present their platform or program of
government; and accredit citizens' arms of the Commission on Elections. Religious
denominations and sects shall not be registered. Those which seek to achieve their
goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be
refused registration.
Financial contributions from foreign governments and their agencies to political
parties, organizations, coalitions, or candidates related to elections constitute
interference in national affairs, and, when accepted, shall be an additional ground for
the cancellation of their registration with the Commission, in addition to other
penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate, prosecute cases
of violations of election laws, including acts or omissions constituting election frauds,
offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize election spending,
including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidacies.
(8) Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or disregard
of, or disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the conduct
of each election, plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the provisions of Article
VI, Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of the Supreme Court to
be designated by the Chief Justice, and the remaining six shall be Members of the
Senate or the House of Representatives, as the case may be, who shall be chosen
on the basis of proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The senior
Justice in the Electoral Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to
the election, returns, and qualifications of the President or Vice-President, and may
promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of the President,
the Vice-President, Senators and the Members of the House of Representatives was made
clear by the Constitution. There is no such provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on
Elections,104 which was affirmatively cited in the En Banc decision in Fermin v.
COMELEC105 is our guide. The citation in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of
candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in Rule
25 § 1, the following:
Grounds for disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied
by a mere rule. Such an act is equivalent to the creation of a cause of action which is a
substantive matter which the COMELEC, in the exercise of its rule-making power under Art.
IX, A, §6 of the Constitution, cannot do it. It is noteworthy that the Constitution withholds from
the COMELEC even the power to decide cases involving the right to vote, which essentially
involves an inquiry into qualifications based on age, residence and citizenship of voters. [Art.
IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but
also in their consequences are proceedings for "disqualification" different from those for a
declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on
grounds specified in § 12 and §68 of the Omnibus Election Code and in §40 of the Local
Government Code and are for the purpose of barring an individual from becoming a
candidate or from continuing as a candidate for public office. In a word, their purpose is to
eliminate a candidate from the race either from the start or during its progress. "Ineligibility,"
on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the
statutes for holding public office and the purpose of the proceedings for declaration of
ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not
imply that he is not disqualified from becoming a candidate or continuing as a candidate for a
public office and vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A.
No. 473) That an alien has the qualifications prescribed in §2 of the Law does not imply that
he does not suffer from any of [the] disqualifications provided in §4.
Before we get derailed by the distinction as to grounds and the consequences of the
respective proceedings, the importance of the opinion is in its statement that "the lack of
provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere
rule". Justice Mendoza lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized proceeding for
determining before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity
for determining his eligibility for the office. In contrast, whether an individual should be
disqualified as a candidate for acts constituting election offenses (e.g., vote buying, over
spending, commission of prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his disqualification is being
sought. That is why it is provided that if the grounds for disqualification are established, a
candidate will not be voted for; if he has been voted for, the votes in his favor will not be
counted; and if for some reason he has been voted for and he has won, either he will not be
proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as
in this case, his domicile, may take a long time to make, extending beyond the beginning of
the term of the office. This is amply demonstrated in the companion case (G.R. No. 120265,
Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was still
pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the
summary character proceedings relating to certificates of candidacy. That is why the law
makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its
officers. The law is satisfied if candidates state in their certificates of candidacy that they are
eligible for the position which they seek to fill, leaving the determination of their qualifications
to be made after the election and only in the event they are elected. Only in cases involving
charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for
President, Vice President, Senators and members of the House of Representatives. (R.A. No.
7166, § 15) The purpose is to preserve the prerogatives of the House of Representatives
Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of the
election, returns and qualifications of members of Congress of the President and Vice
President, as the case may be.106
To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin,
led to the amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its
Rule 25. This, the 15 February1993 version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act
declared by law to be grounds for disqualification may be disqualified from continuing as a
candidate.107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final
decision of a competent court, guilty of, or found by the Commission to be suffering from any
disqualification provided by law or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a
Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a
combination thereof, shall be summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an
authorized proceeding for determining before election the qualifications of candidate. Such
that, as presently required, to disqualify a candidate there must be a declaration by a final
judgment of a competent court that the candidate sought to be disqualified "is guilty of or
found by the Commission to be suffering from any disqualification provided by law or the
Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of
one to the other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for
the COMELEC to determine the qualification of a candidate. The facts of qualification must
beforehand be established in a prior proceeding before an authority properly vested with
jurisdiction. The prior determination of qualification may be by statute, by executive order or
by a judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is suffering from a
disqualification "provided by law or the Constitution," neither can the certificate of candidacy
be cancelled or denied due course on grounds of false representations regarding his or her
qualifications, without a prior authoritative finding that he or she is not qualified, such prior
authority being the necessary measure by which the falsity of the representation can be
found. The only exception that can be conceded are self-evident facts of unquestioned or
unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to prior
decisions against which the falsity of representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that
deals with, as in this case, alleged false representations regarding the candidate's citizenship
and residence, forced the COMELEC to rule essentially that since foundlings108 are not
mentioned in the enumeration of citizens under the 1935 Constitution,109 they then cannot
be citizens. As the COMELEC stated in oral arguments, when petitioner admitted that she is
a foundling, she said it all. This borders on bigotry. Oddly, in an effort at tolerance, the
COMELEC, after saying that it cannot rule that herein petitioner possesses blood relationship
with a Filipino citizen when "it is certain that such relationship is indemonstrable," proceeded
to say that "she now has the burden to present evidence to prove her natural filiation with a
Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither unknown nor
unaccepted in Philippine Law. The Family Code of the Philippines has a whole chapter on
Paternity and Filiation.110 That said, there is more than sufficient evider1ce that petitioner
has Filipino parents and is therefore a natural-born Filipino. Parenthetically, the burden of
proof was on private respondents to show that petitioner is not a Filipino citizen. The private
respondents should have shown that both of petitioner's parents were aliens. Her admission
that she is a foundling did not shift the burden to her because such status did not exclude the
possibility that her parents were Filipinos, especially as in this case where there is a high
probability, if not certainty, that her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities are unknown, but
whether such parents are Filipinos. Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in
issue as to induce belief in its existence or no-existence. Evidence on collateral matters shall
not be allowed, except when it tends in any reasonable degree to establish the probability of
improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine Statistics Authority
(PSA)111 that from 1965 to 1975, the total number of foreigners born in the Philippines was
15,986 while the total number of Filipinos born in the country was 10,558,278. The statistical
probability that any child born in the Philippines in that decade is natural-born Filipino was
99.83%. For her part, petitioner presented census statistics for Iloilo Province for 1960 and
1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734 foreigners in the
province; 99.62% of the population were Filipinos. In 1970, the figures were 1,162,669
Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for the child producing
ages (15-49). In 1960, there were 230,528 female Filipinos as against 730 female foreigners
or 99.68%. In the same year, there were 210,349 Filipino males and 886 male aliens, or
99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female aliens, or
99.56%. That same year, there were 245,740 Filipino males as against only 1,165 male
aliens or 99.53%. COMELEC did not dispute these figures. Notably, Commissioner Arthur
Lim admitted, during the oral arguments, that at the time petitioner was found in 1968, the
majority of the population in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are the fact that she
was abandoned as an infant in a Roman Catholic Church in Iloilo City.1âwphi1 She also has
typical Filipino features: height, flat nasal bridge, straight black hair, almond shaped eyes and
an oval face.
There is a disputable presumption that things have happened according to the ordinary
course of nature and the ordinary habits of life.113 All of the foregoing evidence, that a
person with typical Filipino features is abandoned in Catholic Church in a municipality where
the population of the Philippines is overwhelmingly Filipinos such that there would be more
than a 99% chance that a child born in the province would be a Filipino, would indicate more
than ample probability if not statistical certainty, that petitioner's parents are Filipinos. That
probability and the evidence on which it is based are admissible under Rule 128, Section 4 of
the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In
the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the Philippines so
they can get pregnant and leave their newborn babies behind. We do not face a situation
where the probability is such that every foundling would have a 50% chance of being a
Filipino and a 50% chance of being a foreigner. We need to frame our questions properly.
What are the chances that the parents of anyone born in the Philippines would be foreigners?
Almost zero. What are the chances that the parents of anyone born in the Philippines would
be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there
were 1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301
children in the Philippines of foreign parents. Thus, for that sample period, the ratio of non-
Filipino children to natural born Filipino children is 1:1357. This means that the statistical
probability that any child born in the Philippines would be a natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the
total number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of
non-Filipino children is 1:661. This means that the statistical probability that any child born in
the Philippines on that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers for us, but I am
confident that the statistical probability that a child born in the Philippines would be a natural
born Filipino will not be affected by whether or not the parents are known. If at all, the
likelihood that a foundling would have a Filipino parent might even be higher than 99.9%.
Filipinos abandon their children out of poverty or perhaps, shame. We do not imagine
foreigners abandoning their children here in the Philippines thinking those infants would have
better economic opportunities or believing that this country is a tropical paradise suitable for
raising abandoned children. I certainly doubt whether a foreign couple has ever considered
their child excess baggage that is best left behind.
To deny full Filipino citizenship to all foundlings and render them stateless just because there
may be a theoretical chance that one among the thousands of these foundlings might be the
child of not just one, but two, foreigners is downright discriminatory, irrational, and unjust. It
just doesn't make any sense. Given the statistical certainty - 99.9% - that any child born in the
Philippines would be a natural born citizen, a decision denying foundlings such status is
effectively a denial of their birthright. There is no reason why this Honorable Court should use
an improbable hypothetical to sacrifice the fundamental political rights of an entire class of
human beings. Your Honor, constitutional interpretation and the use of common sense are
not separate disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While the 1935
Constitution's enumeration is silent as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. Because of silence and ambiguity in the
enumeration with respect to foundlings, there is a need to examine the intent of the framers.
In Nitafan v. Commissioner of Internal Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the
people adopting it should be given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the realization of the purpose of the
framers and of the people in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.115
As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934
Constitutional Convention show that the framers intended foundlings to be covered by the
enumeration. The following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted:
"The natural children of a foreign father and a Filipino mother not recognized by the father.
xxxx
President: [We] would like to request a clarification from the proponent of the amendment.
The gentleman refers to natural children or to any kind of illegitimate children?
Sr. Rafols: To all kinds of illegitimate children. It also includes natural children of unknown
parentage, natural or illegitimate children of unknown parents.
Sr. Montinola: For clarification. The gentleman said "of unknown parents." Current codes
consider them Filipino, that is, I refer to the Spanish Code wherein all children of unknown
parentage born in Spanish territory are considered Spaniards, because the presumption is
that a child of unknown parentage is the son of a Spaniard. This may be applied in the
Philippines in that a child of unknown parentage born in the Philippines is deemed to be
Filipino, and there is no need ...
Sr. Rafols: There is a need, because we are relating the conditions that are [required] to be
Filipino.
Sr. Montinola: But that is the interpretation of the law, therefore, there is no [more] need for
amendment.
Sr. Rafols: The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the
children of unknown parentage."
Sr. Briones: The amendment [should] mean children born in the Philippines of unknown
parentage.
Sr. Rafols: The son of a Filipina to a Foreigner, although this [person] does not recognize the
child, is not unknown.
President: Does the gentleman accept the amendment or not?
Sr. Rafols: I do not accept the amendment because the amendment would exclude the
children of a Filipina with a foreigner who does not recognize the child. Their parentage is not
unknown and I think those of overseas Filipino mother and father [whom the latter] does not
recognize, should also be considered as Filipinos.
President: The question in order is the amendment to the amendment from the Gentleman
from Cebu, Mr. Briones.
Sr. Busion: Mr. President, don't you think it would be better to leave this matter in the hands
of the Legislature?
Sr. Roxas: Mr. President, my humble opinion is that these cases are few and far in between,
that the constitution need [not] refer to them. By international law the principle that children or
people born in a country of unknown parents are citizens in this nation is recognized, and it is
not necessary to include a provision on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there was any
objection to the notion that persons of "unknown parentage" are not citizens but only because
their number was not enough to merit specific mention. Such was the account,117 cited by
petitioner, of delegate and constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols presented an amendment to
include as Filipino citizens the illegitimate children with a foreign father of a mother
who was a citizen of the Philippines, and also foundlings; but this amendment was
defeated primarily because the Convention believed that the cases, being too few to
warrant the inclusion of a provision in the Constitution to apply to them, should be
governed by statutory legislation. Moreover, it was believed that the rules of
international law were already clear to the effect that illegitimate children followed the
citizenship of the mother, and that foundlings followed the nationality of the place
where they were found, thereby making unnecessary the inclusion in the Constitution
of the proposed amendment.
This explanation was likewise the position of the Solicitor General during the 16 February
2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was declined was the
proposal for a textual and explicit recognition of foundlings as Filipinos. And so, the way to
explain the constitutional silence is by saying that it was the view of Montinola and Roxas
which prevailed that there is no more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct.
Framers of a constitution can constitutionalize rules based on assumptions that are imperfect
or even wrong. They can even overturn existing rules. This is basic. What matters here is that
Montinola and Roxas were able to convince their colleagues in the convention that there is no
more need to expressly declare foundlings as Filipinos because they are already impliedly so
recognized.
In other words, the constitutional silence is fully explained in terms of linguistic efficiency and
the avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as
Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried
over into the 1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as he
was paraphrased by Chief Justice Fernando: the constitution is not silently silent, it is silently
vocal. 118
The Solicitor General makes the further point that the framers "worked to create a just and
humane society," that "they were reasonable patriots and that it would be unfair to impute
upon them a discriminatory intent against foundlings." He exhorts that, given the grave
implications of the argument that foundlings are not natural-born Filipinos, the Court must
search the records of the 1935, 1973 and 1987 Constitutions "for an express intention to
deny foundlings the status of Filipinos. The burden is on those who wish to use the
constitution to discriminate against foundlings to show that the constitution really intended to
take this path to the dark side and inflict this across the board marginalization."
We find no such intent or language permitting discrimination against foundlings. On the
contrary, all three Constitutions guarantee the basic right to equal protection of the laws. All
exhort the State to render social justice. Of special consideration are several provisions in the
present charter: Article II, Section 11 which provides that the "State values the dignity of
every human person and guarantees full respect for human rights," Article XIII, Section 1
which mandates Congress to "give highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic, and
political inequalities x x x" and Article XV, Section 3 which requires the State to defend the
"right of children to assistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their
development." Certainly, these provisions contradict an intent to discriminate against
foundlings on account of their unfortunate status.
Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws
do not provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must
be a Filipino in the first place to be adopted. The most basic of such laws is Article 15 of the
Civil Code which provides that "[l]aws relating to family rights, duties, status, conditions, legal
capacity of persons are binding on citizens of the Philippines even though living abroad."
Adoption deals with status, and a Philippine adoption court will have jurisdiction only if the
adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a child left by an unidentified mother
was sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in rem, which no court may
entertain unless it has jurisdiction, not only over the subject matter of the case and over the
parties, but also over the res, which is the personal status of Baby Rose as well as that of
petitioners herein. Our Civil Code (Art. 15) adheres to the theory that jurisdiction over the
status of a natural person is determined by the latter's nationality. Pursuant to this theory, we
have jurisdiction over the status of Baby Rose, she being a citizen of the Philippines, but not
over the status of the petitioners, who are foreigners.120 (Underlining supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to
Govern the Inter-Country Adoption of Filipino Children and For Other Purposes" (otherwise
known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act
Establishing the Rules and Policies on the Adoption of Filipino Children and For Other
Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's A.M. No.
02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children" and include
foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling leading to the
issuance of a foundling certificate under these laws and the issuance of said certificate are
acts to acquire or perfect Philippine citizenship which make the foundling a naturalized
Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens are those
who are citizens of the Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship." In the first place, "having to perform an act" means that
the act must be personally done by the citizen. In this instance, the determination of foundling
status is done not by the child but by the authorities.121 Secondly, the object of the process
is the determination of the whereabouts of the parents, not the citizenship of the child. Lastly,
the process is certainly not analogous to naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by one born of an alien father and a Filipino
mother under the 1935 Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that petitioner is a foundling,
as evidenced by a Foundling Certificate issued in her favor.122 The Decree of Adoption
issued on 13 May 1974, which approved petitioner's adoption by Jesusa Sonora Poe and
Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her
"foundling parents," hence effectively affirming petitioner's status as a foundling.123
Foundlings are likewise citizens under international law. Under the 1987 Constitution, an
international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local legislation.124 On the
other hand, generally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not derive from
treaty obligations. Generally accepted principles of international law include international
custom as evidence of a general practice accepted as law, and general principles of law
recognized by civilized nations.125 International customary rules are accepted as binding as
a result from the combination of two elements: the established, widespread, and consistent
practice on the part of States; and a psychological element known as the opinionjuris sive
necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the existence of a rule of law requiring it.126
"General principles of law recognized by civilized nations" are principles "established by a
process of reasoning" or judicial logic, based on principles which are "basic to legal systems
generally,"127 such as "general principles of equity, i.e., the general principles of fairness and
justice," and the "general principle against discrimination" which is embodied in the "Universal
Declaration of Human Rights, the International Covenant on Economic, Social and Cultural
Rights, the International Convention on the Elimination of All Forms of Racial Discrimination,
the Convention Against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation."128 These are the same core
principles which underlie the Philippine Constitution itself, as embodied in the due process
and equal protection clauses of the Bill of Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part
of the generally accepted principles of international law and binding on the State.130 Article
15 thereof states:
1. Everyone has the right to a nationality.
 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change
his nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC).
Article 7 of the UNCRC imposes the following obligations on our country:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a
name, the right to acquire a nationality and as far as possible, the right to know and be cared
for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this field, in
particular where the child would otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights
(ICCPR). Article 24 thereof provide for the right of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language,
religion, national or social origin, property or birth, the right, to such measures of protection as
are required by his status as a minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant
nationality from birth and ensure that no child is stateless. This grant of nationality must be at
the time of birth, and it cannot be accomplished by the application of our present
naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of
which require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the Philippines, are generally
accepted principles of international law. The first is Article 14 of the 1930 Hague Convention
on Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is
presumed to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the country of birth. If
the child's parentage is established, its nationality shall be determined by the rules applicable
in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory of the
State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of the country where
he is found, contained in Article 2 of the 1961 United Nations Convention on the Reduction of
Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the
contrary, be considered to have been born within the territory of parents possessing the
nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention
on the Reduction of Statelessness does not mean that their principles are not binding. While
the Philippines is not a party to the 1930 Hague Convention, it is a signatory to the Universal
Declaration on Human Rights, Article 15(1) ofwhich131 effectively affirms Article 14 of the
1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction
of Statelessness" merely "gives effect" to Article 15(1) of the UDHR.132 In Razon v. Tagitis,
133 this Court noted that the Philippines had not signed or ratified the "International
Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled
that the proscription against enforced disappearances in the said convention was
nonetheless binding as a "generally accepted principle of international law." Razon v. Tagitis
is likewise notable for declaring the ban as a generally accepted principle of international law
although the convention had been ratified by only sixteen states and had not even come into
force and which needed the ratification of a minimum of twenty states. Additionally, as
petitioner points out, the Court was content with the practice of international and regional
state organs, regional state practice in Latin America, and State Practice in the United States.
Another case where the number of ratifying countries was not determinative is Mijares v.
Ranada, 134 where only four countries had "either ratified or acceded to"135 the 1966
"Convention on the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters" when the case was decided in 2005. The Court also pointed out that
that nine member countries of the European Common Market had acceded to the Judgments
Convention. The Court also cited U.S. laws and jurisprudence on recognition of foreign
judgments. In all, only the practices of fourteen countries were considered and yet, there was
pronouncement that recognition of foreign judgments was widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact that "generally
accepted principles of international law" are based not only on international custom, but also
on "general principles of law recognized by civilized nations," as the phrase is understood in
Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally,"136 support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly considered as
"generally accepted principles of international law" under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America,
and Europe have passed legislation recognizing foundlings as its citizen. Forty-two (42) of
those countries follow the jus sanguinis regime. Of the sixty, only thirty-three (33) are parties
to the 1961 Convention on Statelessness; twenty-six (26) are not signatories to the
Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed out that
in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as citizens.
These circumstances, including the practice of jus sanguinis countries, show that it is a
generally accepted principle of international law to presume foundlings as having been born
of nationals of the country in which the foundling is found.
Current legislation reveals the adherence of the Philippines to this generally accepted
principle of international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's
Rules on Adoption, expressly refer to "Filipino children." In all of them, foundlings are among
the Filipino children who could be adopted. Likewise, it has been pointed that the DFA issues
passports to foundlings. Passports are by law, issued only to citizens. This shows that even
the executive department, acting through the DFA, considers foundlings as Philippine
citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our
Constitution. The presumption of natural-born citizenship of foundlings stems from the
presumption that their parents are nationals of the Philippines. As the empirical data provided
by the PSA show, that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter of nationality of
foundlings were designed to address the plight of a defenseless class which suffers from a
misfortune not of their own making. We cannot be restrictive as to their application if we are a
country which calls itself civilized and a member of the community of nations. The Solicitor
General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that those treaties
and conventions were drafted because the world community is concerned that the situation of
foundlings renders them legally invisible. It would be tragically ironic if this Honorable Court
ended up using the international instruments which seek to protect and uplift foundlings a tool
to deny them political status or to accord them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions
of R.A. No. 9225 did not result in the reacquisition of natural-born citizenship. The COMELEC
reasoned that since the applicant must perform an act, what is reacquired is not "natural-
born" citizenship but only plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of
repatriation statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:
Moreover, repatriation results in the recovery of the original nationality. This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a naturalized
Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in several cases.
They include Sobejana-Condon v. COMELEC141 where we described it as an "abbreviated
repatriation process that restores one's Filipino citizenship x x x." Also included is Parreno v.
Commission on Audit,142 which cited Tabasa v. Court of Appeals,143 where we said that
"[t]he repatriation of the former Filipino will allow him to recover his natural-born citizenship.
Parreno v. Commission on Audit144 is categorical that "if petitioner reacquires his Filipino
citizenship (under R.A. No. 9225), he will ... recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural citizens as
implying "that natural-born citizenship must begin at birth and remain uninterrupted and
continuous from birth." R.A. No. 9225 was obviously passed in line with Congress' sole
prerogative to determine how citizenship may be lost or reacquired. Congress saw it fit to
decree that natural-born citizenship may be reacquired even if it had been once lost. It is not
for the COMELEC to disagree with the Congress' determination.
More importantly, COMELEC's position that natural-born status must be continuous was
already rejected in Bengson III v. HRET145 where the phrase "from birth" was clarified to
mean at the time of birth: "A person who at the time of his birth, is a citizen of a particular
country, is a natural-born citizen thereof." Neither is "repatriation" an act to "acquire or
perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that there are only
two types of citizens under the 1987 Constitution: natural-born citizen and naturalized, and
that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present Constitution that
there are only two classes of citizens: (1) those who are natural-born and (2) those who are
naturalized in accordance with law. A citizen who is not a naturalized Filipino, ie., did not have
to undergo the process of naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category
for persons who, after losing Philippine citizenship, subsequently reacquire it. The reason
therefor is clear: as to such persons, they would either be natural-born or naturalized
depending on the reasons for the loss of their citizenship and the mode prescribed by the
applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go
through naturalization proceedings in order to reacquire his citizenship, he is perforce a
natural-born Filipino. As such, he possessed all the necessary qualifications to be elected as
member of the House of Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while
we may always revisit a doctrine, a new rule reversing standing doctrine cannot be
retroactively applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147
where we decreed reversed the condonation doctrine, we cautioned that it "should be
prospective in application for the reason that judicial decisions applying or interpreting the
laws of the Constitution, until reversed, shall form part of the legal system of the Philippines."
This Court also said that "while the future may ultimately uncover a doctrine's error, it should
be, as a general rule, recognized as good law prior to its abandonment. Consequently, the
people's reliance thereupon should be respected."148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a
falsehood when she put in the spaces for "born to" in her application for repatriation under
R.A. No. 9225 the names of her adoptive parents, and this misled the BI to presume that she
was a natural-born Filipino. It has been contended that the data required were the names of
her biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted. One of the effects
of adoption is "to sever all legal ties between the biological parents and the adoptee, except
when the biological parent is the spouse of the adoptee."149 Under R.A. No. 8552, petitioner
was also entitled to an amended birth certificate "attesting to the fact that the adoptee is the
child of the adopter(s)" and which certificate "shall not bear any notation that it is an amended
issue."150 That law also requires that "[a]ll records, books, and papers relating to the
adoption cases in the files of the court, the Department [of Social Welfare and Development],
or any other agency or institution participating in the adoption proceedings shall be kept
strictly confidential."151 The law therefore allows petitioner to state that her adoptive parents
were her birth parents as that was what would be stated in her birth certificate anyway. And
given the policy of strict confidentiality of adoption records, petitioner was not obligated to
disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the
same case for cancellation of COC, it resorted to opinionatedness which is, moreover,
erroneous. The whole process undertaken by COMELEC is wrapped in grave abuse of
discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not petitioner
committed false material representation when she stated in her COC that she has before and
until 9 May 2016 been a resident of the Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months
on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years' residence in the
Philippines before the day of the elections. Since the forthcoming elections will be held on 9
May 2016, petitioner must have been a resident of the Philippines prior to 9 May 2016 for ten
(10) years. In answer to the requested information of "Period of Residence in the Philippines
up to the day before May 09, 2016," she put in "10 years 11 months" which according to her
pleadings in these cases corresponds to a beginning date of 25 May 2005 when she returned
for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the
Philippines. There are three requisites to acquire a new domicile: 1. Residence or bodily
presence in a new locality; 2. an intention to remain there; and 3. an intention to abandon the
old domicile.152 To successfully effect a change of domicile, one must demonstrate an actual
removal or an actual change of domicile; a bona fide intention of abandoning the former place
of residence and establishing a new one and definite acts which correspond with the purpose.
In other words, there must basically be animus manendi coupled with animus non revertendi.
The purpose to remain in or at the domicile of choice must be for an indefinite period of time;
the change of residence must be voluntary; and the residence at the place chosen for the
new domicile must be actual.153
Petitioner presented voluminous evidence showing that she and her family abandoned their
U.S. domicile and relocated to the Philippines for good. These evidence include petitioner's
former U.S. passport showing her arrival on 24 May 2005 and her return to the Philippines
every time she travelled abroad; e-mail correspondences starting in March 2005 to
September 2006 with a freight company to arrange for the shipment of their household items
weighing about 28,000 pounds to the Philippines; e-mail with the Philippine Bureau of Animal
Industry inquiring how to ship their dog to the Philippines; school records of her children
showing enrollment in Philippine schools starting June 2005 and for succeeding years; tax
identification card for petitioner issued on July 2005; titles for condominium and parking slot
issued in February 2006 and their corresponding tax declarations issued in April 2006;
receipts dated 23 February 2005 from the Salvation Army in the U.S. acknowledging donation
of items from petitioner's family; March 2006 e-mail to the U.S. Postal Service confirming
request for change of address; final statement from the First American Title Insurance
Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up
questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return
of petitioner on 24 May 2005 and that she and her family stayed with affiant until the
condominium was purchased); and Affidavit from petitioner's husband (confirming that the
spouses jointly decided to relocate to the Philippines in 2005 and that he stayed behind in the
U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by the COMELEC,
particularly in its Resolution in the Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had been timely
changed as of 24 May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim
conceded the presence of the first two requisites, namely, physical presence and animus
manendi, but maintained there was no animus non-revertendi.154 The COMELEC
disregarded the import of all the evidence presented by petitioner on the basis of the position
that the earliest date that petitioner could have started residence in the Philippines was in
July 2006 when her application under R.A. No. 9225 was approved by the BI. In this regard,
COMELEC relied on Coquilla v. COMELEC,155 Japzon v. COMELEC156 and Caballero v.
COMELEC. 157 During the oral arguments, the private respondents also added Reyes v.
COMELEC.158 Respondents contend that these cases decree that the stay of an alien
former Filipino cannot be counted until he/she obtains a permanent resident visa or
reacquires Philippine citizenship, a visa-free entry under a balikbayan stamp being
insufficient. Since petitioner was still an American (without any resident visa) until her
reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006
cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very different from her
situation. In Coquilla v. COMELEC,159 the only evidence presented was a community tax
certificate secured by the candidate and his declaration that he would be running in the
elections. Japzon v. COMELEC160 did not involve a candidate who wanted to count
residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that
residence is distinct from citizenship, the issue there was whether the candidate's acts after
reacquisition sufficed to establish residence. In Caballero v. COMELEC, 161 the candidate
admitted that his place of work was abroad and that he only visited during his frequent
vacations. In Reyes v. COMELEC,162 the candidate was found to be an American citizen
who had not even reacquired Philippine citizenship under R.A. No. 9225 or had renounced
her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only
proof she offered was a seven-month stint as provincial officer. The COMELEC, quoted with
approval by this Court, said that "such fact alone is not sufficient to prove her one-year
residency."
It is obvious that because of the sparse evidence on residence in the four cases cited by the
respondents, the Court had no choice but to hold that residence could be counted only from
acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In
contrast, the evidence of petitioner is overwhelming and taken together leads to no other
conclusion that she decided to permanently abandon her U.S. residence (selling the house,
taking the children from U.S. schools, getting quotes from the freight company, notifying the
U.S. Post Office of the abandonment of their address in the U.S., donating excess items to
the Salvation Army, her husband resigning from U.S. employment right after selling the U.S.
house) and permanently relocate to the Philippines and actually re-established her residence
here on 24 May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying
property here, constructing a residence here, returning to the Philippines after all trips abroad,
her husband getting employed here). Indeed, coupled with her eventual application to
reacquire Philippine citizenship and her family's actual continuous stay in the Philippines over
the years, it is clear that when petitioner returned on 24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had entered the
Philippines visa-free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise
known as the "An Act Instituting a Balikbayan Program," shows that there is no overriding
intent to treat balikbayans as temporary visitors who must leave after one year. Included in
the law is a former Filipino who has been naturalized abroad and "comes or returns to the
Philippines." 163 The law institutes a balikbayan program "providing the opportunity to avail
of the necessary training to enable the balikbayan to become economically self-reliant
members of society upon their return to the country"164 in line with the government's
"reintegration program."165 Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate
into society, it would be an unduly harsh conclusion to say in absolute terms that the
balikbayan must leave after one year. That visa-free period is obviously granted him to allow
him to re-establish his life and reintegrate himself into the community before he attends to the
necessary formal and legal requirements of repatriation. And that is exactly what petitioner
did - she reestablished life here by enrolling her children and buying property while awaiting
the return of her husband and then applying for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change in domicile is
extensive and overwhelming, has as yet been decided by the Court. Petitioner's evidence of
residence is unprecedented. There is no judicial precedent that comes close to the facts of
residence of petitioner. There is no indication in Coquilla v. COMELEC,166 and the other
cases cited by the respondents that the Court intended to have its rulings there apply to a
situation where the facts are different. Surely, the issue of residence has been decided
particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the
COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11) months
by 9 May 2016 in her 2015 COC was false because she put six ( 6) years and six ( 6) months
as "period of residence before May 13, 2013" in her 2012 COC for Senator. Thus, according
to the COMELEC, she started being a Philippine resident only in November 2006. In doing
so, the COMELEC automatically assumed as true the statement in the 2012 COC and the
2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date required in
the 2013 COC as the period of residence as of the day she submitted that COC in 2012. She
said that she reckoned residency from April-May 2006 which was the period when the U.S.
house was sold and her husband returned to the Philippines. In that regard, she was advised
by her lawyers in 2015 that residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of residence before
13 May 2013) as inquiring about residence as of the time she submitted the COC, is
bolstered by the change which the COMELEC itself introduced in the 2015 COC which is now
"period of residence in the Philippines up to the day before May 09, 2016." The COMELEC
would not have revised the query if it did not acknowledge that the first version was vague.
That petitioner could have reckoned residence from a date earlier than the sale of her U.S.
house and the return of her husband is plausible given the evidence that she had returned a
year before. Such evidence, to repeat, would include her passport and the school records of
her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and
conclusive admission against petitioner. It could be given in evidence against her, yes, but it
was by no means conclusive. There is precedent after all where a candidate's mistake as to
period of residence made in a COC was overcome by evidence. In Romualdez-Marcos v.
COMELEC,167 the candidate mistakenly put seven (7) months as her period of residence
where the required period was a minimum of one year. We said that "[i]t is the fact of
residence, not a statement in a certificate of candidacy which ought to be decisive in
determining whether or not an individual has satisfied the constitutions residency qualification
requirement." The COMELEC ought to have looked at the evidence presented and see if
petitioner was telling the truth that she was in the Philippines from 24 May 2005. Had the
COMELEC done its duty, it would have seen that the 2012 COC and the 2015 COC both
correctly stated the pertinent period of residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner actually and
physically returned here on 24 May 2005 not because it was false, but only because
COMELEC took the position that domicile could be established only from petitioner's
repatriation under R.A. No. 9225 in July 2006. However, it does not take away the fact that in
reality, petitioner had returned from the U.S. and was here to stay permanently, on 24 May
2005. When she claimed to have been a resident for ten (10) years and eleven (11) months,
she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything. As already
stated, a petition for quo warranto had been filed against her with the SET as early as August
2015. The event from which the COMELEC pegged the commencement of residence,
petitioner's repatriation in July 2006 under R.A. No. 9225, was an established fact to repeat,
for purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC,
petitioner recounted that this was first brought up in the media on 2 June 2015 by Rep.
Tobias Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the
issue immediately, also in the press. Respondents have not disputed petitioner's evidence on
this point. From that time therefore when Rep. Tiangco discussed it in the media, the stated
period of residence in the 2012 COC and the circumstances that surrounded the statement
were already matters of public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo
warranto. Her Verified Answer, which was filed on 1 September 2015, admitted that she
made a mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she
misunderstood the question and could have truthfully indicated a longer period. Her answer in
the SET case was a matter of public record. Therefore, when petitioner accomplished her
COC for President on 15 October 2015, she could not be said to have been attempting to
hide her erroneous statement in her 2012 COC for Senator which was expressly mentioned
in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an intention to hide
the 2012 statement and have it covered by the 2015 representation. Petitioner, moreover,
has on her side this Court's pronouncement that:
Concededly, a candidate's disqualification to run for public office does not necessarily
constitute material misrepresentation which is the sole ground for denying due course to, and
for the cancellation of, a COC. Further, as already discussed, the candidate's
misrepresentation in his COC must not only refer to a material fact (eligibility and
qualifications for elective office), but should evince a deliberate intent to mislead, misinform or
hide a fact which would otherwise render a candidate ineligible. It must be made with an
intention to deceive the electorate as to one's qualifications to run for public office.168
In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number
of evidenced dates all of which can evince animus manendi to the Philippines and animus
non revertedi to the United States of America. The veracity of the events of coming and
staying home was as much as dismissed as inconsequential, the focus having been fixed at
the petitioner's "sworn declaration in her COC for Senator" which the COMELEC said
"amounts to a declaration and therefore an admission that her residence in the Philippines
only commence sometime in November 2006"; such that "based on this declaration,
[petitioner] fails to meet the residency requirement for President." This conclusion, as already
shown, ignores the standing jurisprudence that it is the fact of residence, not the statement of
the person that determines residence for purposes of compliance with the constitutional
requirement of residency for election as President. It ignores the easily researched matter
that cases on questions of residency have been decided favorably for the candidate on the
basis of facts of residence far less in number, weight and substance than that presented by
petitioner.169 It ignores, above all else, what we consider as a primary reason why petitioner
cannot be bound by her declaration in her COC for Senator which declaration was not even
considered by the SET as an issue against her eligibility for Senator. When petitioner made
the declaration in her COC for Senator that she has been a resident for a period of six (6)
years and six (6) months counted up to the 13 May 2013 Elections, she naturally had as
reference the residency requirements for election as Senator which was satisfied by her
declared years of residence. It was uncontested during the oral arguments before us that at
the time the declaration for Senator was made, petitioner did not have as yet any intention to
vie for the Presidency in 2016 and that the general public was never made aware by
petitioner, by word or action, that she would run for President in 2016. Presidential candidacy
has a length-of-residence different from that of a senatorial candidacy. There are facts of
residence other than that which was mentioned in the COC for Senator. Such other facts of
residence have never been proven to be false, and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however
stayed in the USA to finish pending projects and arrange the sale of their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner]
enrolled Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in
Makati City in 2005. Anika was enrolled in Learning Connection in San Juan in 2007, when
she was already old enough to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson
Place Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the
construction of their family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer
who handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil
Registrar of Iloilo a new Certificate of Live Birth indicating [petitioner's] new name and stating
that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of
some of the family's remaining household belongings.1a\^/phi1 [Petitioner] returned to the
Philippines on 11 March 2006.
In late March 2006, [petitioner's] husband informed the United States Postal Service of the
family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the
Philippines on 4 May 2006 and began working for a Philippine company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where
they eventually built their family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall
under the exclusive ground of false representation, to consider no other date than that
mentioned by petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence of petitioner for her candidacy
as President of the Republic, the questioned Resolutions of the COMELEC in Division and En
Banc are, one and all, deadly diseased with grave abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-
001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9,
2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-
Llamanzares is hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled
Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES,
to GRANT the petitions and cancel the Certificate of Candidacy of MARY GRACE
NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President of the
Republic of the Philippines in connection with the 9 May 2016 Synchronized Local and
National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015
Resolution of the Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES,
to DENY the Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES. The Resolution dated 11 December 2015 of the
Commission First Division is AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015
Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the
National and Local Elections of 9 May 2016. SO ORDERED.
10. G.R. No. 139465 January 18, 2000
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge,
Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents.
The individual citizen is but a speck of particle or molecule vis-à-vis the vast and
overwhelming powers of government. His only guarantee against oppression and tyranny are
his fundamental liberties under the Bill of Rights which shield him in times of need. The Court
is now called to decide whether to uphold a citizen's basic due process rights, or the
government's ironclad duties under a treaty. The bugle sounds and this Court must once
again act as the faithful guardian of the fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No.
1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes
in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the
Constitution; the mutual concern for the suppression of crime both in the state where it was
committed and the state where the criminal may have escaped; the extradition treaty with the
Republic of Indonesia and the intention of the Philippines to enter into similar treaties with
other interested countries; and the need for rules to guide the executive department and the
courts in the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the
Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty
Between the Government of the Republic of the Philippines and the Government of the
United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The
Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said
treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a),
Article 7 thereof (on the admissibility of the documents accompanying an extradition request
upon certification by the principal diplomatic or consular officer of the requested state resident
in the Requesting State).
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs
U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent
Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury
Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida,
and other supporting documents for said extradition. Based on the papers submitted, private
respondent appears to be charged in the United States with violation of the following
provisions of the United States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two
[2] counts; Maximum Penalty — 5 years on each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty
— 5 years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum
Penalty — 5 years on each count);
D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty — 5
years on each count);
E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts;
Maximum Penalty — less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating and authorizing a
panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of
Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation
and assessment" of the extradition request and the documents in support thereof. The panel
found that the "official English translation of some documents in Spanish were not attached to
the request and that there are some other matters that needed to be addressed" (p. 15,
Rollo).
Pending evaluation of the aforestated extradition documents, private respondent, through
counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the
official extradition request from the U.S. Government, as well as all documents and papers
submitted therewith; and that he be given ample time to comment on the request after he
shall have received copies of the requested papers. Private respondent also requested that
the proceedings on the matter be held in abeyance in the meantime.
Later, private respondent requested that preliminary, he be given at least a copy of, or access
to, the request of the United States Government, and after receiving a copy of the Diplomatic
Note, a period of time to amplify on his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July
13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing
requests for the following reasons:
1. We find it premature to furnish you with copies of the extradition request and
supporting documents from the United States Government, pending evaluation by
this Department of the sufficiency of the extradition documents submitted in
accordance with the provisions of the extradition treaty and our extradition law. Article
7 of the Extradition Treaty between the Philippines and the United States enumerates
the documentary requirements and establishes the procedures under which the
documents submitted shall be received and admitted as evidence. Evidentiary
requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a preliminary
investigation nor akin to preliminary investigation of criminal cases. We merely
determine whether the procedures and requirements under the relevant law and
treaty have been complied with by the Requesting Government. The constitutionally
guaranteed rights of the accused in all criminal prosecutions are therefore not
available.
 It is only after the filing of the petition for extradition when the person sought to be
extradited will be furnished by the court with copies of the petition, request and
extradition documents and this Department will not pose any objection to a request
for ample time to evaluate said documents.
2. The formal request for extradition of the United States contains grand jury
information and documents obtained through grand jury process covered by strict
secrecy rules under United States law. The United States had to secure orders from
the concerned District Courts authorizing the United States to disclose certain grand
jury information to Philippine government and law enforcement personnel for the
purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is
not authorized by the United States District Courts. In this particular extradition
request the United States Government requested the Philippine Government to
prevent unauthorized disclosure of the subject information. This Department's denial
of your request is consistent with Article 7 of the RP-US Extradition Treaty which
provides that the Philippine Government must represent the interests of the United
States in any proceedings arising out of a request for extradition. The Department of
Justice under P.D. No. 1069 is the counsel of the foreign governments in all
extradition requests.
3. This Department is not in a position to hold in abeyance proceedings in connection
with an extradition request. Article 26 of the Vienna Convention on the Law of
Treaties, to which we are a party provides that "[E]very treaty in force is binding upon
the parties to it and must be performed by them in good faith". Extradition is a tool of
criminal law enforcement and to be effective, requests for extradition or surrender of
accused or convicted persons must be processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent filed with the
Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of
Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of
Investigation, for mandamus (to compel herein petitioner to furnish private respondent the
extradition documents, to give him access thereto, and to afford him an opportunity to
comment on, or oppose, the extradition request, and thereafter to evaluate the request
impartially, fairly and objectively); certiorari (to set aside herein petitioner's letter dated July
13, 1999); and prohibition (to restrain petitioner from considering the extradition request and
from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and
the Director of the NBI from performing any act directed to the extradition of private
respondent to the United States), with an application for the issuance of a temporary
restraining order and a writ of preliminary injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled
to Branch 25 of said regional trial court stationed in Manila which is presided over by the
Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who
appeared in his own behalf, moved that he be given ample time to file a memorandum, but
the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of
Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of
Investigation, their agents and/or representatives to maintain the status quo by
refraining from committing the acts complained of; from conducting further
proceedings in connection with the request of the United States Government for the
extradition of the petitioner; from filing the corresponding Petition with a Regional
Trial court; and from performing any act directed to the extradition of the petitioner to
the United States, for a period of twenty (20) days from service on respondents of
this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court.
The hearing as to whether or not this Court shall issue the preliminary injunction, as
agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00
o'clock in the morning. The respondents are, likewise, ordered to file their written
comment and/or opposition to the issuance of a Preliminary Injunction on or before
said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER
BECAUSE:
I.. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE
ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE
RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND
DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN
OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST,
THE MAIN PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR
MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO
AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS
ISSUES;
 II. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING
LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE
EXTRADITION LAW;
III. THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON
ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV. PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS
PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY
IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his comment. Also issued,
as prayed for, was a temporary restraining order (TRO) providing:
NOW, THEREFORE, effective immediately and continuing until further orders from
this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or
any person or persons acting in your place or stead are hereby ORDERED to
CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued
by public respondent in Civil Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of
the Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the parties, as
directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues are
patent. However, a review of these issues as well as the extensive arguments of both parties,
compel us to delineate the focal point raised by the pleadings: During the evaluation stage of
the extradition proceedings, is private respondent entitled to the two basic due process rights
of notice and hearing? An affirmative answer would necessarily render the proceedings at the
trial court, moot and academic (the issues of which are substantially the same as those
before us now), while a negative resolution would call for the immediate lifting of the TRO
issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process
leading to the filing of the extradition petition with the proper regional trial court. Corollarily, in
the event that private respondent is adjudged entitled to basic due process rights at the
evaluation stage of the extradition proceedings, would this entitlement constitute a breach of
the legal commitments and obligations of the Philippine Government under the RP-US
Extradition Treaty? And assuming that the result would indeed be a breach, is there any
conflict between private respondent's basic due process rights and the provisions of the RP-
US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly into the
substantive merits of the case, brushing aside peripheral procedural matters which concern
the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the
petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition
Treaty which was executed only on November 13, 1994, ushered into force the implementing
provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law.
Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines
with the object of placing him at the disposal of foreign authorities to enable the requesting
state or government to hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government." The portions of the Decree relevant to the instant case
which involves a charged and not convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State, addressed to the
Secretary of Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of arrest
issued by the authority of the Requesting State having jurisdiction over the matter, or
some other instruments having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the fullest particulars as
to the name and identity of the accused, his whereabouts in the Philippines, if known,
the acts or omissions complained of, and the time and place of the commission of
these acts;
3. The text of the applicable law or a statement of the contents of said law, and the
designation or description of the offense by the law, sufficient for evaluation of the
request; and
4. Such other documents or information in support of the request.
(Sec. 4. Presidential Decree No. 1069.)
Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign
Affairs, pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to
meet the requirements of this law and the relevant treaty or convention, he shall
forward the request together with the related documents to the Secretary of Justice,
 who shall immediately designate and authorize an attorney in his office to take
charge of the case.
The above provision shows only too clearly that the executive authority given the task of
evaluating the sufficiency of the request and the supporting documents is the Secretary of
Foreign Affairs. What then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the
executive authority must ascertain whether or not the request is supported by:
1. Documents, statements, or other types of information which describe the identity
and probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of the case;
3. A statement of the provisions of the law describing the essential elements of the
offense for which extradition is requested;
4. A statement of the provisions of law describing the punishment for the offense;
5. A statement of the provisions of the law describing any time limit on the
prosecution or the execution of punishment for the offense;
6. Documents, statements, or other types of information specified in paragraph 3 or
paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State, would provide
probable cause for his arrest and committal for trial if the offense had been
committed there;
8. A copy of the warrant or order of arrest issued by a judge or other competent
authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the
accompanying documents received in support of the request had been certified by the
principal diplomatic or consular officer of the Requested State resident in the Requesting
State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the
Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be
granted if the executive authority of the Requested State determines that the request is
politically motivated, or that the offense is a military offense which is not punishable under
non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its
supporting documents are sufficient and complete in form and substance, he shall deliver the
same to the Secretary of Justice, who shall immediately designate and authorize an attorney
in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer
designated shall then file a written petition with the proper regional trial court of the province
or city, with a prayer that the court take the extradition request under consideration
(Paragraph [2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall,
as soon as practicable, issue an order summoning the prospective extraditee to appear and
to answer the petition on the day and hour fixed in the order. The judge may issue a warrant
of arrest if it appears that the immediate arrest and temporary detention of the accused will
best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight
of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition proceeding is
criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof
provides that in the hearing of the extradition petition, the provisions of the Rules of Court,
insofar as practicable and not inconsistent with the summary nature of the proceedings, shall
apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of
the case may, upon application by the Requesting State, represent the latter throughout the
proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the extradition and
giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss
the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose
decision shall be final and immediately executory (Section 12, ibid.). The provisions of the
Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the
aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable
based on the application of the dual criminality rule and other conditions mentioned in Article
2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense
for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US
Extradition Treaty).1âwphi1.nêt
With the foregoing abstract of the extradition proceedings as backdrop, the following query
presents itself: What is the nature of the role of the Department of Justice at the evaluation
stage of the extradition proceedings?
A strict observance of the Extradition Law indicates that the only duty of the Secretary of
Justice is to file the extradition petition after the request and all the supporting papers are
forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized
to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article
3 of the Treaty, to determine whether or not the request is politically motivated, or that the
offense is a military offense which is not punishable under non-military penal legislation. Ipso
facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary
of Justice has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that there was
failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the
extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the
following day or less than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of thoroughly
evaluating the same and its accompanying documents. The statement of an assistant
secretary at the Department of Foreign Affairs that his Department, in this regard, is merely
acting as a post office, for which reason he simply forwarded the request to the Department
of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking
lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine
the completeness of the documents and to evaluate the same to find out whether they comply
with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty.
Petitioner ratiocinates in this connection that although the Department of Justice had no
obligation to evaluate the extradition documents, the Department also had to go over them so
as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it
was also at this stage where private respondent insisted on the following; (1) the right to be
furnished the request and the supporting papers; (2) the right to be heard which consists in
having a reasonable period of time to oppose the request, and to present evidence in support
of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the
filing of private respondent's opposition to the request.
The two Departments seem to have misread the scope of their duties and authority, one
abdicating its powers and the other enlarging its commission. The Department of Foreign
Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting
the instant petition as its own, indirectly conveying the message that if it were to evaluate the
extradition request, it would not allow private respondent to participate in the process of
evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of
Foreign Affairs thoroughly reviewed the extradition request and supporting documents and
that it arrived at a well-founded judgment that the request and its annexed documents satisfy
the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could
not privately review the papers all by himself. He had to officially constitute a panel of
attorneys. How then could the DFA Secretary or his undersecretary, in less than one day,
make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs to a class by
itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is
purely an exercise of ministerial functions. At such stage, the executive authority has the
power: (a) to make a technical assessment of the completeness and sufficiency of the
extradition papers; (b) to outrightly deny the request if on its face and on the face of the
supporting documents the crimes indicated are not extraditable; and (c) to make a
determination whether or not the request is politically motivated, or that the offense is a
military one which is not punishable under non-military penal legislation (tsn, August 31,
1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence,
said process may be characterized as an investigative or inquisitorial process in contrast to a
proceeding conducted in the exercise of an administrative body's quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of
evidence; (b) determining facts based upon the evidence presented; and (c) rendering an
order or decision supported by the facts proved (De Leon, Administrative Law: Text and
Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power,
which is also known as examining or investigatory power, is one or the determinative powers
of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz,
Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to
inspect the records and premises, and investigate the activities, of persons or entities coming
under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or
accounts, records, reports, testimony of witnesses, production of documents, or otherwise
(De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing evidence, which is
a useful aid or tool in an administrative agency's performance of its rule-making or quasi-
judicial functions. Notably, investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on
the functions of an investigatory body with the sole power of investigation. It does not
exercise judicial functions and its power is limited to investigating the facts and making
findings in respect thereto. The Court laid down the test of determining whether an
administrative body is exercising judicial functions or merely investigatory functions:
Adjudication signifies the exercise of power and authority to adjudicate upon the rights and
obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate
evidence submitted before it based on the facts and circumstances presented to it, and if the
agency is not authorized to make a final pronouncement affecting the parties, then there is an
absence of judicial discretion and judgment.
The above description in Ruperto applies to an administrative body authorized to evaluate
extradition documents. The body has no power to adjudicate in regard to the rights and
obligations of both the Requesting State and the prospective extraditee. Its only power is to
determine whether the papers comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial
and not final. The body has no power to determine whether or not the extradition should be
effected. That is the role of the court. The body's power is limited to an initial finding of
whether or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure
is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the
extradition process. Ultimately, it may result in the deprivation of liberty of the prospective
extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the
prospective extraditee pending the submission of the request. This is so because the Treaty
provides that in case of urgency, a contracting party may request the provisional arrest of the
person sought pending presentation of the request (Paragraph [1], Article 9, RP-US
Extradition Treaty), but he shall be automatically discharged after 60 days if no request is
submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20
days after which the arrested person could be discharged (Section 20[d]). Logically, although
the Extradition Law is silent on this respect, the provisions only mean that once a request is
forwarded to the Requested State, the prospective extraditee may be continuously detained,
or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he
will only be discharged if no request is submitted. Practically, the purpose of this detention is
to prevent his possible flight from the Requested State. Second, the temporary arrest of the
prospective extraditee during the pendency of the extradition petition in court (Section 6,
Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as early as during
the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one.
Because of these possible consequences, we conclude that the evaluation process is akin to
an administrative agency conducting an investigative proceeding, the consequences of which
are essentially criminal since such technical assessment sets off or commences the
procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As
described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In
essence, therefore, the evaluation process partakes of the nature of a criminal investigation.
In a number of cases, we had occasion to make available to a respondent in an
administrative case or investigation certain constitutional rights that are ordinarily available
only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral
arguments, there are rights formerly available only at the trial stage that had been advanced
to an earlier stage in the proceedings, such as the right to counsel and the right against self-
incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs.
Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right
against self-incrimination under Section 17, Article III of the 1987 Constitution which is
ordinarily available only in criminal prosecutions, extends to administrative proceedings which
possess a criminal or penal aspect, such as an administrative investigation of a licensed
physician who is charged with immorality, which could result in his loss of the privilege to
practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6
SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner,
is an even greater deprivation than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a
respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we
therein ruled that since the investigation may result in forfeiture of property, the administrative
proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a
penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where
the Court, citing American jurisprudence, laid down the test to determine whether a
proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is
presented the forfeiture can be included in the criminal case, such proceeding is criminal in
nature, although it may be civil in form; and where it must be gathered from the statute that
the action is meant to be criminal in its nature, it cannot be considered as civil. If, however,
the proceeding does not involve the conviction of the wrongdoer for the offense charged, the
proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of one's property or
property right. No less is this true, but even more so in the case before us, involving as it
does the possible deprivation of liberty, which, based on the hierarchy of constitutionally
protected rights, is placed second only to life itself and enjoys precedence over property, for
while forfeited property can be returned or replaced, the time spent in incarceration is
irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a person to eventual
extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the
process. In this sense, the evaluation procedure is akin to a preliminary investigation since
both procedures may have the same result — the arrest and imprisonment of the respondent
or the person charged. Similar to the evaluation stage of extradition proceedings, a
preliminary investigation, which may result in the filing of an information against the
respondent, can possibly lead to his arrest, and to the deprivation of his liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a
criminal procedural statute is not well-taken. Wright is not authority for petitioner's conclusion
that his preliminary processing is not akin to a preliminary investigation. The characterization
of a treaty in Wright was in reference to the applicability of the prohibition against an ex post
facto law. It had nothing to do with the denial of the right to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced
by public authority, whether sanctioned by age or custom, or newly devised in the discretion
of the legislative power, in furtherance of the general public good, which regards and
preserved these principles of liberty and justice, must be held to be due process of law"
(Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be
deemed non-compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the suppression and
punishment of crime in their respective jurisdictions. At the same time, both States accord
common due process protection to their respective citizens.
The due process clauses in the American and Philippine Constitutions are not only worded in
exactly identical language and terminology, but more importantly, they are alike in what their
respective Supreme Courts have expounded as the spirit with which the provisions are
informed and impressed, the elasticity in their interpretation, their dynamic and resilient
character which make them capable of meeting every modern problem, and their having been
designed from earliest time to the present to meet the exigencies of an undefined and
expanding future. The requirements of due process are interpreted in both the United States
and the Philippines as not denying to the law the capacity for progress and improvement.
Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead
prefer to have the meaning of the due process clause "gradually ascertained by the process
of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs.
New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair
play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA
849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea
of free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components — substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or
property, and procedural due process which consists of the two basic rights of notice and
hearing, as well as the guarantee of being heard by an impartial and competent tribunal
(Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing
pervade not only in criminal and civil proceedings, but in administrative proceedings as well.
Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be
notified of any pending case affecting their interests, and upon notice, they may claim the
right to appear therein and present their side and to refute the position of the opposing parties
(Cruz, Phil. Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory proceeding, Section 3,
Rule 112 of the Rules of Court guarantees the respondent's basic due process rights,
granting him the right to be furnished a copy of the complaint, the affidavits, and other
supporting documents, and the right to submit counter-affidavits and other supporting
documents within ten days from receipt thereof. Moreover, the respondent shall have the right
to examine all other evidence submitted by the complainant.
These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceeding where there is an urgent need for immediate action, like the
summary abatement of a nuisance per se (Article 704, Civil Code), the preventive
suspension of a public servant facing administrative charges (Section 63, Local
Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters
showing obscene movies or like establishments which are immediate threats to
public health and decency, and the cancellation of a passport of a person sought for
criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent
is not precluded from enjoying the right to notice and hearing at a later time without
prejudice to the person affected, such as the summary distraint and levy of the
property of a delinquent taxpayer, and the replacement of a temporary appointee;
and
3. Where the twin rights have previously been offered but the right to exercise them
had not been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the
evaluation stage of the extradition proceedings fall under any of the described situations
mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are quite
noteworthy considering that the subject treaty involves the U.S. Government.
American jurisprudence distinguishes between interstate rendition or extradition which is
based on the Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2), and international
extradition proceedings. In interstate rendition or extradition, the governor of the asylum state
has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the
implementing statute are given a liberal construction to carry out their manifest purpose,
which is to effect the return as swiftly as possible of persons for trial to the state in which they
have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an
alleged fugitive, the requisition papers or the demand must be in proper form, and all the
elements or jurisdictional facts essential to the extradition must appear on the face of the
papers, such as the allegation that the person demanded was in the demanding state at the
time the offense charged was committed, and that the person demanded is charged with the
commission of the crime or that prosecution has been begun in the demanding state before
some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with
the governor of the asylum state, and must contain such papers and documents prescribed
by statute, which essentially include a copy of the instrument charging the person demanded
with a crime, such as an indictment or an affidavit made before a magistrate. Statutory
requirements with respect to said charging instrument or papers are mandatory since said
papers are necessary in order to confer jurisdiction on the government of the asylum state to
effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the
indictment, information, affidavit, or judgment of conviction or sentence and other instruments
accompanying the demand or requisitions be furnished and delivered to the fugitive or his
attorney is directory. However, the right being such a basic one has been held to be a right
mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr.
407 and Ex parte Tucker, Cr., 324, S.W.2d 853).
In international proceedings, extradition treaties generally provide for the presentation to the
executive authority of the Requested State of a requisition or demand for the return of the
alleged offender, and the designation of the particular officer having authority to act in behalf
of the demanding nation (31A Am Jur 2d 815).
In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated
September 13, 1999 from the Criminal Division of the U.S. Department of Justice,
summarizing the U.S. extradition procedures and principles, which are basically governed by
a combination of treaties (with special reference to the RP-US Extradition Treaty), federal
statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic channel. In
urgent cases, requests for the provincial arrest of an individual may be made directly
by the Philippine Department of Justice to the U.S. Department of Justice, and vice-
versa. In the event of a provisional arrest, a formal request for extradition is
transmitted subsequently through the diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition request to
the Department of Justice. Before doing so, the Department of State prepares a
declaration confirming that a formal request has been made, that the treaty is in full
force and effect, that under Article 17 thereof the parties provide reciprocal legal
representation in extradition proceedings, that the offenses are covered as
extraditable offenses under Article 2 thereof, and that the documents have been
authenticated in accordance with the federal statute that ensures admissibility at any
subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the
prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is authorized to
hold a hearing to consider the evidence offered in support of the extradition request
(Ibid.)
4. At the hearing, the court must determine whether the person arrested is
extraditable to the foreign country. The court must also determine that (a) it has
jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the
defendant is being sought for offenses for which the applicable treaty permits
extradition; and (c) there is probable cause to believe that the defendant is the
person sought and that he committed the offenses charged (Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify extraditability
after having received a "complaint made under oath, charging any person found
within his jurisdiction" with having committed any of the crimes provided for by the
governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted
that a long line of American decisions pronounce that international extradition
proceedings partake of the character of a preliminary examination before a
committing magistrate, rather than a trial of the guilt or innocence of the alleged
fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are present, it
incorporates its determinations in factual findings and conclusions of law and certifies
the person's extraditability. The court then forwards this certification of extraditability
to the Department of State for disposition by the Secretary of State. The ultimate
decision whether to surrender an individual rests with the Secretary of State (18
U.S.C. §3186).
7. The subject of an extradition request may not litigate questions concerning the
motives of the requesting government in seeking his extradition. However, a person
facing extradition may present whatever information he deems relevant to the
Secretary of State, who makes the final determination whether to surrender an
individual to the foreign government concerned.
From the foregoing, it may be observed that in the United States, extradition begins and ends
with one entity — the Department of State — which has the power to evaluate the request
and the extradition documents in the beginning, and, in the person of the Secretary of State,
the power to act or not to act on the court's determination of extraditability. In the Philippine
setting, it is the Department of Foreign Affairs which should make the initial evaluation of the
request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then
forwards the request to the Department of Justice for the preparation and filing of the petition
for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case,
perfunctorily turned over the request to the Department of Justice which has taken over the
task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and
prosecuting the petition for extradition.
Private respondent asks what prejudice will be caused to the U.S. Government should the
person sought to be extradited be given due process rights by the Philippines in the
evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the
evaluation process.
We agree with private respondent's citation of an American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate state ends
is a proper state interest worthy of cognizance in constitutional adjudication. But the
Constitution recognizes higher values than speed and efficiency. Indeed, one might
fairly say of the Bill of Rights in general, and the Due Process Clause, in particular,
that they were designed to protect the fragile values of a vulnerable citizenry from the
overbearing concern for efficiency and efficacy that may characterize praiseworthy
government officials no less, and perhaps more, than mediocre ones.
 (Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine Government that no
right — that of liberty — secured not only by the Bills of Rights of the Philippines Constitution
but of the United States as well, is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where the rights of the
individual are concerned, the end does not justify the means. It is not enough that
there be a valid objective; it is also necessary that the means employed to pursue it
be in keeping with the Constitution. Mere expediency will not excuse constitutional
shortcuts. There is no question that not even the strongest moral conviction or the
most urgent public need, subject only to a few notable exceptions, will excuse the
bypassing of an individual's rights. It is no exaggeration to say that a person invoking
a right guaranteed under Article III of the Constitution is a majority of one even as
against the rest of the nation who would deny him that right (Association of Small
Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343,
375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool of criminal law
enforcement. To be effective, requests for extradition or the surrender of accused or
convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-
tracked proceedings and adherence to fair procedures are, however, not always
incompatible. They do not always clash in discord. Summary does not mean precipitous
haste. It does not carry a disregard of the basic principles inherent in "ordered liberty."
Is there really an urgent need for immediate action at the evaluation stage? At that point,
there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In
interstate extradition, the governor of the asylum state may not, in the absence of mandatory
statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the
extradition papers, he may hold that federal and statutory requirements, which are
significantly jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an
extradition treaty, the executive authority of the requested state has the power to deny the
behest from the requesting state. Accordingly, if after a careful examination of the extradition
documents the Secretary of Foreign Affairs finds that the request fails to meet the
requirements of the law and the treaty, he shall not forward the request to the Department of
Justice for the filing of the extradition petition since non-compliance with the aforesaid
requirements will not vest our government with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted notable efforts in
assuring compliance with the requirements of the law and the treaty since it even informed
the U.S. Government of certain problems in the extradition papers (such as those that are in
Spanish and without the official English translation, and those that are not properly
authenticated). In fact, petitioner even admits that consultation meetings are still supposed to
take place between the lawyers in his Department and those from the U.S. Justice
Department. With the meticulous nature of the evaluation, which cannot just be completed in
an abbreviated period of time due to its intricacies, how then can we say that it is a
proceeding that urgently necessitates immediate and prompt action where notice and hearing
can be dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action.
Is private respondent precluded from enjoying the right to notice and hearing at a later time
without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation
procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an
administrative if adverse to the person involved, may cause his immediate incarceration. The
grant of the request shall lead to the filing of the extradition petition in court. The "accused"
(as Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only
after the extradition petition is filed in court, but even during the evaluation proceeding itself
by virtue of the provisional arrest allowed under the treaty and the implementing law. The
prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot be
dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise invokes
Section 7 of Article III which reads:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
The above provision guarantees political rights which are available to citizens of the
Philippines, namely: (1) the right to information on matters of public concern, and (2) the
corollary right of access to official records documents. The general right guaranteed by said
provision is the right to information on matters of public concern. In its implementation, the
right of access to official records is likewise conferred. These cognate or related rights are
"subject to limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A
Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is an informed
and critical public opinion which alone can protect the values of democratic government
(Ibid.).
Petitioner argues that the matters covered by private respondent's letter-request dated July 1,
1999 do not fall under the guarantee of the foregoing provision since the matters contained in
the documents requested are not of public concern. On the other hand, private respondent
argues that the distinction between matters vested with public interest and matters which are
of purely private interest only becomes material when a third person, who is not directly
affected by the matters requested, invokes the right to information. However, if the person
invoking the right is the one directly affected thereby, his right to information becomes
absolute.
The concept of matters of public concerns escapes exact definition. Strictly speaking, every
act of a public officer in the conduct of the governmental process is a matter of public concern
(Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This
concept embraces a broad spectrum of subjects which the public may want to know, either
because these directly affect their lives or simply because such matters arouse the interest of
an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the
real party in interest is the people and any citizen has "standing".
When the individual himself is involved in official government action because said action has
a direct bearing on his life, and may either cause him some kind of deprivation or injury, he
actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not
exactly the right to information on matters of public concern. As to an accused in a criminal
proceeding, he invokes Section 14, particularly the right to be informed of the nature and
cause of the accusation against him.
The right to information is implemented by the right of access to information within the control
of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996
ed., p. 337). Such information may be contained in official records, and in documents and
papers pertaining to official acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to official government
action from the U.S. Government. No official action from our country has yet been taken.
Moreover, the papers have some relation to matters of foreign relations with the U.S.
Government. Consequently, if a third party invokes this constitutional provision, stating that
the extradition papers are matters of public concern since they may result in the extradition of
a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the
interests necessary for the proper functioning of the government. During the evaluation
procedure, no official governmental action of our own government has as yet been done;
hence the invocation of the right is premature. Later, and in contrast, records of the
extradition hearing would already fall under matters of public concern, because our
government by then shall have already made an official decision to grant the extradition
request. The extradition of a fellow Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant controversy:
Would private respondent's entitlement to notice and hearing during the evaluation stage of
the proceedings constitute a breach of the legal duties of the Philippine Government under
the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict
between the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to pass upon the
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law
implementing the same. We limit ourselves only to the effect of the grant of the basic rights of
notice and hearing to private respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of
international law, requires the parties to a treaty to keep their agreement therein in good faith.
The observance of our country's legal duties under a treaty is also compelled by Section 2,
Article II of the Constitution which provides that "[t]he Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of international law as
part of the law of the land, and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with nations." Under the doctrine of incorporation, rules of international
law form part of the law of the and land no further legislative action is needed to make such
rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed.,
p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are
confronted with situations in which there appears to be a conflict between a rule of
international law and the provisions of the constitution or statute of the local state. Efforts
should first be exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the generally accepted
principles of international law in observance of the observance of the Incorporation Clause in
the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a
situation, however, where the conflict is irreconcilable and a choice has to be made between
a rule of international law and municipal law, jurisprudence dictates that municipal law should
be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales
vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that
such courts are organs of municipal law and are accordingly bound by it in all circumstances
(Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law
of the land does not pertain to or imply the primacy of international law over national or
municipal law in the municipal sphere. The doctrine of incorporation, as applied in most
countries, decrees that rules of international law are given equal standing with, but are not
superior to, national legislative enactments. Accordingly, the principle lex posterior derogat
priori takes effect — a treaty may repeal a statute and a statute may repeal a treaty. In states
where the constitution is the highest law of the land, such as the Republic of the Philippines,
both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and municipal or national
law? En contrario, these two components of the law of the land are not pined against each
other. There is no occasion to choose which of the two should be upheld. Instead, we see a
void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential
Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the
evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the
filing of the extradition petition and during the judicial determination of the propriety of
extradition, the rights of notice and hearing are clearly granted to the prospective extraditee.
However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition
procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes
the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the
extradition request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair play. An application
of the basic twin due process rights of notice and hearing will not go against the treaty or the
implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a
prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose
no proscription. In fact, in interstate extradition proceedings as explained above, the
prospective extraditee may even request for copies of the extradition documents from the
governor of the asylum state, and if he does, his right to be supplied the same becomes a
demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to prevent
unauthorized disclosure of confidential information. Hence, the secrecy surrounding the
action of the Department of Justice Panel of Attorneys. The confidentiality argument is,
however, overturned by petitioner's revelation that everything it refuses to make available at
this stage would be obtainable during trial. The Department of Justice states that the U.S.
District Court concerned has authorized the disclosure of certain grand jury information. If the
information is truly confidential, the veil of secrecy cannot be lifted at any stage of the
extradition proceedings. Not even during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as
American jurisprudence and procedures on extradition, for any prohibition against the
conferment of the two basic due process rights of notice and hearing during the evaluation
stage of the extradition proceedings. We have to consider similar situations in jurisprudence
for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and a preliminary
investigation since both procedures may result in the arrest of the respondent or the
prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the
Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential
Decree No. 1069). Following petitioner's theory, because there is no provision of its
availability, does this imply that for a period of time, the privilege of the writ of habeas corpus
is suspended, despite Section 15, Article III of the Constitution which states that "[t]he
privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or
rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is
not available during the arrest of the prospective extraditee when the extradition petition has
already been filed in court since Presidential Decree No. 1069 does not provide therefor,
notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons,
except those charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that
since these contraventions are by virtue of a treaty and hence affecting foreign relations, the
aforestated guarantees in the Bill of Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the essence of due process in
administrative proceeding is an opportunity to explain one's side or an opportunity to seek
reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96
[1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997];
Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA
602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process
refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots
Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard
of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the
Requesting State may have valid objections to the Requested State's non-performance of its
commitments under the Extradition Treaty are insubstantial and should not be given
paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four
corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance System vs. Court
of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447
[1997]) where we ruled that in summary proceedings under Presidential Decree No. 807
(Providing for the Organization of the Civil Service Commission in Accordance with
Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes),
and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated
National Police who may be charged for Service-Connected Offenses and Improving the
Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for
other purposes), as amended by Presidential Decree No. 1707, although summary dismissals
may be effected without the necessity of a formal investigation, the minimum requirements of
due process still operate. As held in GSIS vs. Court of Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an
employee may be removed or dismissed even without formal investigation, in certain
instances. It is equally clear to us that an employee must be informed of the charges
preferred against him, and that the normal way by which the employee is so informed
is by furnishing him with a copy of the charges against him. This is a basic procedural
requirement that a statute cannot dispense with and still remain consistent with the
constitutional provision on due process. The second minimum requirement is that the
employee charged with some misfeasance or malfeasance must have a reasonable
 opportunity to present his side of the matter, that is to say, his defenses against the
charges levelled against him and to present evidence in support of his defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due
process rights of the respondent.
In the case at bar, private respondent does not only face a clear and present danger of loss
of property or employment, but of liberty itself, which may eventually lead to his forcible
banishment to a foreign land. The convergence of petitioner's favorable action on the
extradition request and the deprivation of private respondent's liberty is easily
comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is aptly described as
"justice outside legality," may be availed of only in the absence of, and never against,
statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267
SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The
constitutional issue in the case at bar does not even call for "justice outside legality," since
private respondent's due process rights, although not guaranteed by statute or by treaty, are
protected by constitutional guarantees. We would not be true to the organic law of the land if
we choose strict construction over guarantees against the deprivation of liberty. That would
not be in keeping with the principles of democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and
government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant
and wayward course be laid.
WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED
for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition
request and its supporting papers, and to grant him a reasonable period within which to file
his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been
rendered moot and academic by this decision, the same is hereby ordered dismissed. SO
ORDERED.
Separate Opinions
VITUG, J., separate opinion;
The only real issue before the Court, I would take it, is whether or not private respondent can
validly ask for copies of pertinent documents while the application for extradition against him
is still undergoing process by the Executive Department.
There is, I agree with the majority, a right of access to such extradition documents
conformably with the provisions of Article III, Section 7, of the Philippine Constitution. 1 The
constitutional right to free access to information of public concern is circumscribed only by the
fact that the desired information is not among the species exempted by law from the
operation of the constitutional guaranty and that the exercise of the right conforms with such
reasonable conditions as may be prescribed by law.
There is no hornbook rule to determine whether or not an information is of public concern.
The term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of
matters which the public may want to know either because the subject thereof can affect their
lives or simply because it arouses concern.2
I am not convinced that there is something so viciously wrong with, as to deny, the request of
private respondent to be furnished with copies of the extradition documents.
I add. The constitutional right to due process secures to everyone an opportunity to be heard,
presupposing foreknowledge of what he may be up against, and to submit any evidence that
he may wish to proffer in an effort to clear himself. This right is two-pronged — substantive
and procedural due process — founded, in the first instance, on Constitutional or statutory
provisions, and in the second instance, on accepted rules of procedure.3 Substantive due
process looks into the extrinsic and intrinsic validity of the law that figures to interfere with the
right of a person to his life, liberty and property. Procedural due process — the more litigated
of the two — focuses on the rules that are established in order to ensure meaningful
adjudication in the enforcement and implementation of the law. Like "public concern," the
term due process does not admit of any restrictive definition. Justice Frankfurter has viewed
this flexible concept, aptly I believe, as being ". . . compounded by history, reason, the past
course of decisions, and stout confidence in the democratic faith."4 The framers of our own
Constitution, it would seem, have deliberately intended, to make it malleable to the ever-
changing milieu of society. Hitherto, it is dynamic and resilient, adaptable to every situation
calling for its application that makes it appropriate to accept an enlarged concept of the term
as and when there is a possibility that the right of an individual to life, liberty and property
might be diffused.5 Verily, whenever there is an imminent threat to the life, liberty or property
of any person in any proceeding conducted by or under the auspices of the State, his right to
due process of law, when demanded, must not be ignored.
A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the
Extradition Treaty between the Government of the Republic of the Philippines and the
Government of the United States of America provides that in case of urgency, a Contracting
Party may request the provisional arrest of the person prior to the presentation of the request
for extradition. I see implicit in this provision that even after the request for extradition is made
and before a petition for extradition is filed with the courts, the possibility of an arrest being
made on the basis of a mere evaluation by the Executive on the request for extradition by the
foreign State cannot totally be discounted.
The conclusion reached by the majority, I hasten to add, does not mean that the Executive
Department should be impeded in its evaluation of the extradition request. The right of the
extraditee to be furnished, upon request, with a copy of the relevant documents and to file his
comment thereon is not necessarily anathema to the proceedings duly mandated by the
treaty to be made.
I vote to deny the petition.
KAPUNAN, J., separate concurring opinion;
I vote to dismiss the petition, both on technical and substantial grounds.
The petition in the case at bar raises one and only issue, which is the validity of the
Temporary Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August
9, 1999 in Civil Case No. 99-94684. The TRO directed respondents in said case to:
. . . maintain the status quo by refraining from committing the acts complained of;
from conducting further proceedings in connection with the request of the United
States Government for the extradition of the petitioner; from filing the corresponding
Petition with the Regional Trial Court; and from performing any act directed to the
extradition of the petitioner to the United States, for a period of twenty days from the
service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997
Rules of Court.1 (Emphasis ours.)
The petition itself categorically states that "(t)he issue sought to be presented and litigated
here is solely-the validity of the TRO."2
Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to
hear the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there
any other act, ruling, order, or decision, apart from the TRO already mentioned, of respondent
Judge that is being challenged in the petition before us.
Since, as alleged in the petition, a copy of the TRO was served on respondents below on
August 10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the
instant petition has become moot and academic. This Court does not exercise jurisdiction
over cases which are moot and academic or those not ripe for judicial consideration.3
Assuming that the present case has not become moot and academic, still, it should be
dismissed for lack of merit.
The substantive issues raised in this case are: (a) whether a person whose extradition is
sought by a foreign state has due process rights under Section 2, Article III of the 1997
Constitution before the Department of Justice as the request for extradition is being
evaluated, or whether due process rights maybe invoked only upon the filing of a petition for
extradition before a regional trial court; and (b) whether or not private respondent has a right
of access to extradition documents under Section 7, Article III of the 1997 Constitution.
Petitioner contends that due process rights such as the right to be informed of the basis of the
request for extradition and to have an opportunity to controvert are not provided in the
extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings.
Further, he argues that the documents sought to be furnished to private respondent only
involve private concerns, and not matters of public concern to which the people have a
constitutional right to access.
While the evaluation process conducted by the Department of Justice is not exactly a
preliminary investigation of criminal cases, it is akin to a preliminary investigation because it
involves the basic constitutional rights of the person sought to be extradited. A person
ordered extradited is arrested, forcibly taken from his house, separated from his family and
delivered to a foreign state. His rights of abode, to privacy, liberty and pursuit of happiness
are taken away from him — a fate as harsh and cruel as a conviction of a criminal offense.
For this reason, he is entitled to have access to the evidence against him and the right to
controvert them.
While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation,
neither does either prohibit it. The right to due process is a universal basic right which is
deemed written into our laws and treaties with foreign countries.
Like a preliminary investigation, the evaluation by the Department of Justice of the extradition
request and its accompanying documents is to establish probable cause and to secure the
innocent against hasty, malicious and oppressive prosecution.
In this connection, it should be stressed that the evaluation procedure of the extradition
request and its accompanying documents by the Department of Justice cannot be
characterized as a mere "ex-parte technical assessment of the sufficiency" thereof. The
function and responsibilities of the Department of Justice in evaluating the extradition papers
involve the exercise of judgment. They involve a determination whether the request for
extradition conforms fully to the requirements of the extradition treaty and whether the offense
is extraditable. These include, among others, whether the offense for which extradition is
requested is a political or military offense (Article 3); whether the documents and other
informations required under Article 7(2) have been provided (Article 7); and whether the
extraditable offense is punishable under the laws of both contracting parties by deprivation of
liberty for a period of more than one year (Article 2). Consequently, to arrive at a correct
judgment, the parties involved are entitled to be heard if the requirements of due process and
equal protection are to be observed.
With respect to petitioner's claim that private respondent has no right to demand access to
the documents relating to the request for extradition, suffice it to say, that any document used
in a proceeding that would jeopardize a person's constitutional rights is matter of public
concern. As Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so
any violation of one's rights guaranteed by the Bill of Rights is everybody's concern because
they, one way or another, directly or indirectly, affect the rights of life and liberty of all the
citizens as a whole.
Due process rights in a preliminary investigation is now an established principle. The
respondent has a right of access to all of the evidence. He has the right to submit
controverting evidence. The prosecuting official who conducts the preliminary investigation is
required to be neutral, objective, and impartial in resolving the issue of probable cause. I see
no reason why the same rights may not be accorded a person sought to be extradited at the
stage where the Department of Justice evaluates whether a petition for extradition would be
filed before a regional trial court. If denied such rights, not only denial of due process rights
but of equal protection may be raised.
It is suggested that after a petition for extradition is filed with a regional trial court, the person
sought to be extradited may exercise all due process rights. He may then have access to all
the records on the basis of which the request for extradition has been made. He may
controvert that evidence and raise all defenses he may consider appropriate. That, it is urged,
meets the due process requirement.
But why must he wait until the petition for extradition is filed? As succinctly expressed, if the
right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted
at a time when the deprivation can still be prevented.4 Like the filing of an information in a
criminal case, the mere filing of a petition for extradition causes immediate impairment of the
liberty of the person sought to be extradited and a substantial curtailment of other rights. His
arrest may be immediately ordered by the regional trial court. He would be compelled to face
an open and public trial. He will be constrained to seek the assistance of counsel and incur
other expenses of litigation. The public eye would be directed at him with all the concomitant
intrusions to his right to privacy. Where the liberty of a person is at risk, and extradition strikes
at the very core of liberty, invocation of due process rights can never be too early.
QUISUMBING, J., concurring opinion;
As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest
observations.
The human rights of person, whether citizen or alien, and the rights of the accused
guaranteed in our Constitution should take precedence over treaty rights claimed by a
contracting state. Stated otherwise, the constitutionally mandated duties of our government to
the individual deserve preferential consideration when they collide with its treaty obligations to
the government of another state. This is so although we recognize treaties as a source of
binding obligations under generally accepted principles of international law incorporated in
our Constitution as part of the law of the land.
For this primordial reason, I vote to DENY the petition.
Moreover, considering that the Extradition Treaty between the USA and Philippines appears
mute on the specific issue before us, the Court — in the exercise of its judicial power to find
and state what the law is — has this rare opportunity of setting a precedent that enhances
respect for human rights and strengthens due process of law.
As both majority and dissenting colleagues in the Court will recognize, American authorities
follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to
statute, the state Executive upon demand furnishes the would be extraditee or counsel copies
of pertinent documents as well as the request for extradition; and (2) the international practice
where the Executive department need not initially grant notice and hearing at all. Rules of
reciprocity and comity, however, should not bar us from applying internationally now what
appears the more reasonable and humane procedure, that is, the interstate practice among
Americans themselves. For in this case the American people should be among the most
interested parties.
Truly, what private respondent is asking our Executive department (notice, copies of
documents, and the opportunity to protect himself at the earliest time against probable peril)
does not, in my view, violate our Extradition Treaty with the USA. His request if granted
augurs well for transparency in interstate or intergovernmental relations rather than secrecy
which smacks of medieval diplomacy and the inquisition discredited long ago.
That private respondent is a Filipino citizen is not decisive of the issue here, although it is
obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in
my view, entitled to our full protection against the hazards of extradition (or deportation,
similarly) from the very start. More so because, looking at the facts adduced at the hearing
and on the record of this case, the charges against him involve or are co-mingled with, if not
rooted in, certain offenses of a political nature or motivation such as the ones involving
alleged financial contributions to a major American political party. If so, long established is the
principle that extradition could not be utilized for political offenses or politically motivated
charges.
There may, of course, be other charges against private respondent in the USA. But then they
are, in my view, already tainted there with political color due to the highly charged partisan
campaign atmosphere now prevailing. That private respondent's cases will be exploited as
political fodder there is not far-fetched, hence the need here for cautious but comprehensive
deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are
construing; it is about constitutional and human rights we are most concerned.
YNARES-SANTIAGO, J., concurring opinion;
I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a
citizen's right to be given what is due to him. I join in his exposition of this Court's
constitutional duty to strike the correct balance between overwhelming Government power
and the protection of individual rights where only one person is involved.
However, I am constrained to write this short concurrence if only to pose the question of why
there should be any debate at all on a plea for protection of one's liberty which, if granted, will
not result in any meaningful impediment of thwarting any state policy and objectives.
I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked
about, should first be exposed to the indignity, expense, and anxiety of a public denunciation
in court before he may be informed of what the contracting states in an extradition treaty have
against him. There is no question that everything which respondent Jimenez now requests
will be given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he should
be informed why he may be deported from his own country.
I see no ill effects which would arise if the extradition request and supporting documents are
shown to him now, instead of later.
Petitioner Secretary of Justice states that his action on the extradition request and its
supporting documents will merely determine whether or not the Philippines is complying with
its treaty obligations. He adds that, therefore, the constitutional rights of an accused in all
criminal prosecutions are not available to the private respondent.
The July 13, 1999 reply-letter from petitioner states the reasons why he is denying
respondent Jimenez's requests. In short, the reasons are:
1. In evaluating the documents, the Department merely determines whether the
procedures and requirements under the relevant law and treaty have been complied
with by the Requesting Government. The constitutional rights of the accused in all
criminal prosecutions are, therefore, not available.
2. The United States Government has requested the Philippine Government to
prevent unauthorized disclosure of certain grand jury information.
3. The petitioner cannot hold in abeyance proceedings in connection with an
extradition request. For extradition to be an effective tool of criminal law enforcement,
requests for surrender of accused or convicted persons must be processed
expeditiously.
I respectfully submit that any apprehensions in the Court arising from a denial of the petition
— "breach of an international obligation, rupture of states relations, forfeiture of confidence,
national embarrassment, and a plethora of other equally undesirable consequences" — are
more illusory than real. Our country is not denying the extradition of a person who must be
extradited. Not one provision of the extradition treaty is violated. I cannot imagine the United
States taking issue over what, to it, would be a minor concession, perhaps a slight delay,
accorded in the name of human rights. On the other hand, the issue is fundamental in the
Philippines. A citizen is invoking the protection, in the context of a treaty obligation, of rights
expressly guaranteed by the Philippine Constitution.
Until proved to be a valid subject for extradition, a person is presumed innocent or not
covered by the sanctions of either criminal law or international treaty. At any stage where a
still prospective extraditee only seeks to know so that he can prepare and prove that he
should not be extradited, there should be no conflict over the extension to him of
constitutional protections guaranteed to aliens and citizens alike.
Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty.
Article 7 enumerates the required documents and establishes the procedures under which
the documents shall be submitted and admitted as evidence. There is no specific provision on
how that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice
is not even in the picture at this stage. Under petitioner's theory, silence in the treaty over a
citizen's rights during the evaluation stage is interpreted as deliberate exclusion by the
contracting states of the right to know. Silence is interpreted as the exclusion of the right to a
preliminary examination or preliminary investigation provided by the laws of either one of the
two states.
The right to be informed of charges which may lead to court proceedings and result in a
deprivation of liberty is ordinarily routine. It is readily available to one against whom the
state's coercive power has already been focused. I fail to see how silence can be interpreted
as exclusion. The treaty is silent because at this stage, the preliminary procedure is still an
internal matter. And when a law or treaty is silent, it means a right or privilege may be
granted. It is not the other way around.
The second reason alleging the need for secrecy and confidentiality is even less convincing.
The explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the
United States Government requested the Philippine Government to prevent unauthorized
disclosure of certain information. On the other hand, petitioner declares that the United States
has already secured orders from concerned District Courts authorizing the disclosure of the
same grand jury information to the Philippine Government and its law enforcement personnel.
Official permission has been given. The United States has no cause to complain about the
disclosure of information furnished to the Philippines.
Moreover, how can grand jury information and documents be considered confidential if they
are going to be introduced as evidence in adversely proceedings before a trial court? The
only issue is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any
crime will be determined in an American court. It is there where prosecution strategies will be
essential. If the Contracting States believed in a total non-divulging of information prior to
court hearings, they would have so provided in the extradition treaty. A positive provision
making certain rights unavailable cannot be implied from silence.
I cannot believe that the United States and the Philippines with identical constitutional
provisions on due process and basic rights should sustain such a myopic view in a situation
where the grant of a right would not result in any serious setbacks to criminal law
enforcement.
It is obvious that any prospective extraditee wants to know if his identity as the person
indicated has been established. Considering the penchant of Asians to adopt American
names when in America, the issue of whether or not the prospective extraditee truly is the
person charged in the United States becomes a valid question. It is not only identity of the
person which is involved. The crimes must also be unmistakably identified and their essential
elements clearly stated.
There are other preliminary matters in which respondent is interested. I see nothing in our
laws or in the Treaty which prohibits the prospective extraditee from knowing until after the
start of trial whether or not the extradition treaty applies to him.
Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941); and
Salonga vs. Hon. Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to
secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to
protect him from an open and extensively publicized accusation of crimes; to spare him the
trouble, expense, and anxiety of a public trial; and also to protect the state from useless and
expensive trails. Even if the purpose is only to determine whether or not the respondent is a
proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and
freedom accorded to those charged with ordinary crimes in the Philippines.
The third reason given by petitioner is the avoidance of delay. Petitioner views the request to
be informed as part of undesirable delaying tactics. This is most unfortunate. Any request for
extradition must be viewed objectively and impartially without any predisposition to granting it
and, therefore, hastening the extradition process.
In the first place, any assistance which the evaluating official may get from the participation of
respondent may well point out deficiencies and insufficiencies in the extradition documents. It
would incur greater delays if these are discovered only during court trial. On the other hand,
if, from respondent's participation, the evaluating official discovers a case of mistaken
identity, insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there
would be no delays during trial. An unnecessary trial with all its complications would be
avoided.
The right to be informed is related to the constitutional right to a speedy trial. The
constitutional guarantee extends to the speedy disposition of cases before all quasi-judicial
and administrative bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does
not mean the deliberate exclusion of the defendant or respondent from the proceedings. As
this Court rules in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial,
means one free from vexatious, capricious and oppressive delays, its salutary objective being
to assure that an innocent person may be free from the anxiety and expense of a court
litigation or, if otherwise, of having his guilt (in this case, his being extradited) determined
within the shortest possible time compatible with the presentation and consideration of
whatsoever legitimate defense he may interpose."
The right to be informed and the right to a preliminary hearing are not merely for respondent.
They also serve the interests of the State.1âwphi1.nêt
In closing, I maintain that the paramount consideration of guaranteeing the constitutional
rights of individual respondent override the concerns of petitioner. There should be no hurried
or indifferent effort to routinely comply with all requests for extradition. I understand that this is
truer in the United States than in other countries. Proposed extraditees are given every legal
protection available from the American justice system before they are extradited. We serve
under a government of limited powers and inalienable rights. Hence, this concurrence.
PUNO, J., dissenting opinion;
If the case at bar was strictly a criminal case which involves alone the right of an accused to
due process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice
Jose A.R. Melo, without taking half a pause. But the case at bar does not involve the guilt or
innocence of an accused but the interpretation of an extradition treaty where at stake is our
government's international obligation to surrender to a foreign state a citizen of its own so he
can be tried for an alleged offense committed within that jurisdiction. The issues are of first
impression and the majority opinion dangerously takes us to unknown shoals in constitutional
and international laws, hence this dissenting opinion.
Extradition is a well-defined concept and is more a problem in international law. It is the
"process by which persons charged with or convicted of crime against the law of a State and
found in a foreign State are returned by the latter to the former for trial or punishment. It
applies to those who are merely charged with an offense but have not been brought to trial; to
those who have been tried and convicted and have subsequently escaped from custody; and
those who have been convicted in absentia. It does not apply to persons merely suspected of
having committed an offense but against who no charge has been laid or to a person whose
presence is desired as a witness or for obtaining or enforcing a civil judgment."1 The definition
covers the private respondent who is charged with two (2) counts of conspiracy to commit
offense or to defraud the United States, four (4) counts of attempt to evade or defeat tax, two
(2) counts of fraud by wire, radio or television, six (6) counts of false statements or entries
and thirty-three (33) counts of election contributions in the name of another. There is an
outstanding warrant of arrest against the private respondent issued by the US District Court,
Southern District of Florida.
A brief review of the history of extradition law will illumine our labor. Possibly the most
authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of
extradition into four (4) periods: "(1) ancient times to seventeenth century — a period
revealing almost exclusive concern for political and religious offenders; (2) the eighteenth
century and half of the nineteenth century — a period of treaty-making chiefly concerned with
military offenders characterizing the condition of Europe during that period; (3) from 1833 to
1948 — a period of collective concern in suppressing common criminality; and (4) post-1948
developments which ushered in a greater concern for protecting the human rights of persons
and revealed an awareness of the need to have international due process of law regulate
international relations."2
It is also rewarding to have a good grip on the changing slopes in the landscape of extradition
during these different periods. Extradition was first practiced by the Egyptians, Chinese,
Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear.
Sometimes, it was granted due to pacts; at other times, due to plain good will. 3 The classical
commentators on international law thus focused their early views on the nature of the duty to
surrender an extraditee — whether the duty is legal or moral in character. Grotius and de
Vattel led the school of thought that international law imposed a legal duty called civitas
maxima to extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of
thought that the so-called duty was but an "imperfect obligation which could become
enforceable only by a contract or agreement between states.5
Modern nations tilted towards the view of Puffendorf and Billot that under international law
there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus,
the US Supreme Court in US v. Rauscher,6 held: ". . . . it is only in modern times that the
nations of the earth have imposed upon themselves the obligation of delivering up these
fugitives from justice to the states where their crimes were committed, for trial and
punishment. This has been done generally by treaties . . . Prior to these treaties, and apart
from them there was no well-defined obligation on one country to deliver up such fugitives to
another; and though such delivery was often made it was upon the principle of comity . . ."
Then came the long and still ongoing debate on what should be the subject of international
law. The 20th century saw the dramatic rise and fall of different types and hues of
authoritarianism — the fascism of Italy's Mussolini and Germany's Hitler, the militarism of
Japan's Hirohito and the communism of Russia's Stalin, etc. The sinking of these isms led to
the elevation of the rights of the individual against the state. Indeed, some species of human
rights have already been accorded universal recognition.7 Today, the drive to internationalize
rights of women and children is also on high gear.8 The higher rating given to human rights in
the hierarchy of values necessarily led to the re-examination of rightful place of the individual
in international law. Given the harshest eye is the moss-covered doctrine that international
law deals only with States and that individuals are not its subject. For its undesirable corrally
is the sub-doctrine that an individual's right in international law is a near cipher. Translated in
extradition law, the view that once commanded a consensus is that since a fugitive is a mere
object and not a subject of international law, he is bereft of rights. An extraditee, so it was
held, is a mere "object transported from one state to the other as an exercise of the sovereign
will of the two states involved."9 The re-examination consigned this pernicious doctrine to the
museum of ideas.10 The new thinkers of international law then gave a significant shape to the
role and rights of the individual in state-concluded treaties and other international
agreements. So it was declared by then US Ambassador Philip C. Jessup in audible italics:
"A very large part of international affairs and, thus, of the process of international
accommodation, concerns the relations between legal persons known as states. This is
necessarily so. But it is no longer novel for the particular interest of the human being to break
through the mass of interstate relationship."11 The clarion call to re-engineer a new world
order whose dominant interest would transcend the parochial confines of national states was
not unheeded. Among the world class scholars who joined the search for the elusive
ideological underpinnings of a new world order were Yale Professor Myres McDougal and Mr.
Justice Florentino Feliciano. In their seminal work. Law and Minimum World Public Order,
they suggested that the object of the new world should be "to obtain in particular situations
and in the aggregate flow of situations the outcome of a higher degree of conformity with the
security goals of preservation, deterrence, restoration, rehabilitation and reconstruction of all
societies comprising the world community."12 Needless to stress, all these prescient theses
accelerated the move to recognize certain rights of the individual in international law.
We have yet to see the final and irrevocable place of individual rights, especially the rights of
an extraditee, in the realm of international law. In careful language, Bassiouni observes that
today, "institutionalized conflicts between states are still rationalized in terms of sovereignty,
national interest, and national security, while human interests continue to have limited, though
growing impact on the decision-making processes which translate national values and goals
into specific national and international policy."13
I belabor the international law aspect of extradition as the majority opinion hardly gives it a
sideglance. It is my humble submission that the first consideration that should guide us in the
case at bar is that a bilateral treaty — the RP-US Extradition Treaty — is the subject matter of
the litigation. In our constitutional scheme, the making of a treaty belongs to the executive
and legislative departments of our government. Between these two departments, the
executive has a greater say in the making of a treaty. Under Section 21, Article VII of our
Constitution, the President has the sole power to negotiate treaties and international
agreements although to be effective, they must be concurred in by at least two thirds of all the
members of the Senate. Section 20 of the same Article empowers the President to contract or
guarantee foreign loans with the prior concurrence of the Monetary Board. Section 16 of the
same Article gives the President the power to appoint ambassadors, other public ministers
and consuls subject to confirmation by the Commission on Appointments. In addition, the
President has the power to deport undesirable aliens. The concentration of these powers in
the person of the President is not without a compelling consideration. 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. Beyond debate, the President is the single most powerful official in our land for
Section 1 of Article VII provides that "the executive power shall be vested in the President of
the Philippines," whereas Section 1 of Article VI states that "the legislative power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives . . . except to the extent reserved to the people by the provision on initiative
and referendum," while Section 1 of Article VIII provides that "judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law." Thus, we can
see that executive power is vested in the President alone whereas legislative and judicial
powers are shared and scattered. 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.14 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.
These are some of the dominant policy considerations in international law that the Court must
balance against the claim of the private respondent that he has a right to be given the
extradition documents against him and to comment thereon even while they are still at the
evaluation stage by the petitioner Secretary of Justice, an alter ego of the President. The
delicate questions of what constitutional rights and to what degree they can be claimed by an
extraditee do not admit of easy answers and have resulted in discrete approaches the world
over.15 On one end of the pole is the more liberal European approach. The European Court of
Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant
provisions of the European Convention for the Protection of Human Rights and Fundamental
Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences
adversely affecting the enjoyment of a convention right, it may, assuming that the
consequences are not too remote, attract the obligations of a Contracting State under the
relevant convention guarantee."16 At the other end of the pole is the more cautious approach
of the various Courts of Appeal in the United States. These courts have been more
conservative in light of the principle of separation of powers and their faith in the presumptive
validity of executive decisions. By and large, they adhere to the rule of non-inquiry under
which the extraditing court refuses to examine the requesting country's criminal justice
system or consider allegations that the extraditee will be mistreated or denied a fair trial in
that country.17
The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the
RP-US Extradition Treaty and our Constitution where we have to choose one over the other.
Rather, it calls for a harmonization between said treaty and our Constitution. To achieve this
desirable objective, the Court should consider whether the constitutional rights invoked by the
private respondent have truly been violated and even assuming so, whether he will be denied
fundamental fairness. It is only when their violation will destroy the respondent's right to
fundamental fairness that his constitutional claims should be given primacy.
Given this balancing approach, it is my humble submission that considering all the facts and
facets of the case, the private respondent has not proved entitlement to the right he is
claiming. The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069
do not prohibit respondent's claims, hence, it should be allowed. This is too simplistic an
approach. Rights do not necessarily arise from a vacuum. Silence of the law can even mean
an implied denial of a right. Also, constitutional litigations do not always involve a clear cut
choice between right and wrong. Sometimes, they involve a difficult choice between right
against right. In these situations, there is need to balance the contending rights and primacy
is given to the right that will serve the interest of the nation at that particular time. In such
instances, the less compelling right is subjected to soft restraint but without smothering its
essence. Proceeding from this premise of relativism of rights, I venture the view that even
assuming arguendo respondent's weak claim, still, the degree of denial of private
respondent's rights to due process and to information is too slight to warrant the interposition
of judicial power. As admitted in the ponencia itself, an extradition proceeding is sui generis. It
is, thus, futile to determine what it is. What is certain is that it is not a criminal proceeding
where there is an accused who claim the entire array of rights guaranteed by the Bill of
Rights. Let it be stressed that in an extradition proceeding, there is no accused and the guilt
or innocence of the extraditee will not be passed upon by our executive officials nor by the
extradition judge. Hence, constitutional rights that are only relevant do determine the guilt or
innocence of an accused cannot be invoked by an extraditee. Indeed, an extradition
proceeding is summary in nature which is untrue of criminal proceedings.18 Even the rules of
evidence are different in an extradition proceeding. Admission of evidence is less stringent,
again because the guilt of the extraditee is not under litigation.19 It is not only the quality but
even the quantum of evidence in extradition proceeding is different. In a criminal case, an
accused can only be convicted by proof beyond reasonable doubt.20 In an extradition
proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima
facie case."21 If more need be said, the nature of an extradition decision is different from a
judicial decision whose finality cannot be changed by executive fiat. Our courts 22 may hold an
individual extraditable but the ultimate decision to extradite the individual lies in the hands of
the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that
"extradition shall not be granted if the executive authority of the Requested State determined
that the request was politically motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation." In the United States, the Secretary of State
exercises this ultimate power and is conceded considerable discretion. He balances the
equities of the case and the demands of the nation's foreign relations.23 In sum, he is not
straitjacketed by strict legal considerations like an ordinary court.
The type of issue litigated in extradition proceedings which does not touch on the guilt or
innocence of the extraditee, the limited nature of the extradition proceeding, the availability of
adequate remedies in favor of the extraditee, and the traditional leeway given to the
Executive in the conduct of foreign affairs have compelled courts to put a high threshold
before considering claims of individuals that enforcement of an extradition treaty will violate
their constitutional rights. Exemplifying such approach is the Supreme Court of Canada which
has adopted a highly deferential standard that emphasizes international comity and the
executive's experience in international matters.24 It continues to deny Canada's charter
protection to extraditees unless the violation can be considered shocking to the conscience.
In the case, at bar and with due respect, the ponencia inflates with too much significance the
threat to liberty of the private respondent to prop us its thesis that his constitutional rights to
due process and access to information must immediately be vindicated. Allegedly,
respondent Jimenez stands in danger of provisional arrest, hence, the need for him to be
immediately furnished copies of documents accompanying the request for his extradition.
Respondent's fear of provisional arrest is not real. It is a self-imagined fear for the realities on
the ground show that the United States authorities have not manifested any desire to request
for his arrest. On the contrary, they filed the extradition request through the regular channel
and, even with the pendency of the case at bar, they have not moved for respondent's arrest
on the ground of probable delay in the proceedings. To be sure, the issue of whether
respondent Jimenez will be provisionally arrested is now moot. Under Section 1 of Article 9 of
the RP-US Extradition Treaty, in relation to Section 20(a) of PD No. 1069, the general
principle is enunciated that a request for provisional arrest must be made pending receipt of
the request for extradition. By filing the request for extradition, the US authorities have
implicitly decided not to move for respondent's provisional arrest. But more important, a
request for respondent's arrest does not mean he will be the victim of an arbitrary arrest. He
will be given due process before he can be arrested. Article 9 of the treaty provides:
PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the provisional arrest of the
person sought pending presentation of the request for extradition. A request for
provisional arrest may be transmitted through the diplomatic channel or directly
between the Philippine Department of Justice and the United States Department of
Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statements of the facts of the case, including, if possible, the time
and location of the offense;
d) a description of the laws violated;
e) a statement of the existence of a warrant of a warrant of arrest or finding
of guilt or judgment of conviction against the person sought; and
f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of its
application and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the
executive authority of the Requested State has not received the formal request for
extradition and the supporting documents required in Article 7.
In relation to the above, Section 20 of P.D. No. 1069 provides:
Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state may,
pursuant to the relevant treaty or convention and while the same remains in force,
request for the provisional arrest of the accused, pending receipt of the request for
extradition made in accordance with Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to the Director of the National Bureau
of Investigation, Manila, either through the diplomatic channels or direct by post or
telegraph.
(c) The Director of the National Bureau of Investigation or any official acting on his
behalf shall upon receipt of the request immediately secure a warrant for the
provisional arrest of the accused from the presiding judge of the Court of First
Instance of the province or city having jurisdiction of the place, who shall issue the
warrant for the provisional arrest of the accused. The Director of the National Bureau
of Investigation through the Secretary of Foreign Affairs shall inform the requesting
state of the result of its request.
(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign
Affairs has not received the request for extradition and the documents mentioned in
Section 4 of this Decree, the accused shall be released from custody.
The due process protection of the private-respondent against arbitrary arrest is written in
cyrillic letters in these two (2) related provisions. It is self-evident under these provisions that
a request for provisional arrest does not mean it will be granted ipso facto. The request must
comply with certain requirements. It must be based on an "urgent" factor. This is subject to
verification and evaluation by our executive authorities. The request can be denied if not
based on a real exigency of if the supporting documents are insufficient. The protection of the
respondent against arbitrary provisional arrest does not stop on the administrative level. For
even if the Director of the National Bureau of Investigation agrees with the request for the
provisional arrest of the respondent, still he has to apply for a judicial warrant from the
"presiding judge of the Court of First Instance (now RTC) of the province of city having
jurisdiction of the place. . . . ." It is a judge who will issue a warrant for the provisional arrest of
the respondent. The judge has comply with Section 2, Article III of the Constitution which
provides that "no . . . warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the . . . persons
or things to be seized." The message that leaps to the eye is that compliance with this
requirements precludes any arbitrary arrest.
In light of all these considerations, I respectfully submit that denying respondent's
constitutional claim to be furnished all documents relating to the request for his extradition by
the US authorities during their evaluation stage will not subvert his right to fundamental
fairness. It should be stressed that this is not a case where the respondent will not be given
an opportunity to know the basis of the request for his extradition. In truth, and contrary to the
impression of the majority, P.D. No. 1069 fixes the specific time when he will be given the
papers constituting the basis for his extradition. The time is when he is summoned by the
extradition court and required to answer the petition for extradition. Thus, Section 6 of P.D.
No. 1069 provides:
Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. — (1)
Immediately upon receipt of the petition, the presiding judge of the court shall, as
soon as practicable, summon the accused to appear and to answer the petition on
the day and hour fixed in the order. He may issue a warrant for the immediate arrest
of the accused which may be served anywhere within the Philippines if it appears to
the presiding judge that the immediate arrest and temporary detention of the accused
will best serve the ends of justice. Upon receipt of the answer within the time fixed,
the presiding judge shall hear the case or set another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case.
Upon receipt of the summons and the petition, respondent is free to foist all defense available
to him. Such an opportunity does not deny him fairness which is the essence of due process
of law.
Thus, with due respect, I submit that the ponencia failed to accord due importance to the
international law aspect of an extradition treaty as it unduly stressed its constitutional law
dimension. This goes against the familiar learning that in balancing the clashing interests
involved in extradition treaty, national interest is more equal than the others. While lately,
humanitarian considerations are being factored in the equation, still the concept of extradition
as a national act is the guiding idea. Requesting and granting extradition remains a power
and prerogative of the national government of a State. The process still involves relations
between international personalities.25 Needless to state, a more deferential treatment should
be given to national interest than to individual interest. Our national interest in extraditing
persons who have committed crimes in a foreign country are succinctly expressed in the
whereas clauses of P.D. No. 1069, viz:
WHEREAS, the Constitution of the Philippines adopts the generally accepted
principles of international law as part of law of the land, and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with all nations;
WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped,
because it saps the foundation of social life and is an outrage upon humanity at large,
and it is in the interest of civilized communities that crimes should not go unpunished.
....
The increasing incidence of international and transnational crimes, the development of new
technologies of death, and the speed and scale of improvement of communication are factors
which have virtually annihilated time and distance. They make more compelling the
vindication of national interest to insure that the punishment of criminals should not be
frustrated by the frontiers of territorial sovereignty. This overriding national interest must be
upheld as against respondent's weak constitutional claims which in no way amount to denial
of fundamental fairness.
At bottom, this case involves the respect that courts should accord to the Executive that
concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as
1800, the legendary John Marshall, then a congressman, has opined that the power to
extradite pursuant to a treaty rests in the executive branch as part of its power to conduct
foreign affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken
cases. They defer to the judgment of the Executive on the necessities of our foreign affairs
and on its view of the requirements of international comity. The deferential attitude is dictated
by the robust reality that of the three great branches of our government, it is the Executive
that is most qualified to guide the ship of the state on the known and unknown continents of
foreign relations. It is also compelled by considerations of the principle of separation of
powers for the Constitution has clearly allocated the power to conduct our foreign affairs to
the Executive. I respectfully submit that the majority decision has weakened the Executive by
allowing nothing less than an unconstitutional headbutt on the power of the Executive to
conduct our foreign affairs. The majority should be cautions in involving this Court in the
conduct of the nation's foreign relations where the inviolable rule dictated by necessity is that
the nation should speak with one voice. We should not overlook the reality that courts by their
nature, are ill-equipped to fully comprehend the foreign policy dimension of a treaty, some of
which are hidden in shadows and silhouettes.
I vote to grant the petition.
PANGANIBAN, J., dissenting opinion;
With due respect, I dissent.
The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the
due process rights of notice and hearing during the preliminary or evaluation stage of the
extradition proceeding against him.
Two Staged in Extradition
There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation
stage, whereby the executive authority of the requested state ascertains whether the
extradition request is supported by the documents and information required under the
Extradition Treaty; and (2) the extradition hearing, whereby the petition for extradition is heard
before a court of justice, which determines whether the accused should be extradited.
The instant petition refers only to the first stage. Private respondent claims that he has a right
to be notified and to be heard at this early stage. However, even the ponencia admits that
neither the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly
requires the Philippine government, upon receipt of the request for extradition, to give copies
thereof and its supporting documents to the prospective extraditee, much less to give him an
opportunity to be heard prior to the filing of the petition in court.
Notably, international extradition proceedings in the United States do not include the grant by
the executive authority of notice and hearing to the prospective extraditee at this initial stage.
It is the judge or magistrate who is authorized to issue a warrant of arrest and to hold a
hearing to consider the evidence submitted in support of the extradition request. In contrast,
in interstate rendition, the governor must, upon demand, furnish the fugitive or his attorney
copies of the request and its accompanying documents, pursuant to statutory provisions. 1 In
the Philippines, there is no similar statutory provision.
Evaluation Stage Essentially Ministerial
The evaluation stage simply involves the ascertainment by the foreign affairs secretary of
whether the extradition request is accompanied by the documents stated in paragraphs 2 and
3, Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the
facts of the offense and the procedural history of the case; provisions of the law describing
the essential elements of the offense charged and the punishment therefor; its prescriptive
period; such evidence as would provide probable cause for the arrest and the committal for
trial of the fugitive; and copies of the warrant or order of arrest and charging document. The
foreign affairs secretary also sees to it that these accompanying documents have been
certified by the principal diplomatic or consular officer of the Philippines in the United States,
and that they are in English language or have English translations. Pursuant to Article 3 of the
Treaty, he also determines whether the request is politically motivated, and whether the
offense charged is a military offense not punishable under non-military penal legislation.2
Upon a finding of the secretary of foreign affairs that the extradition request and its supporting
documents are sufficient and complete in form and substance, he shall deliver the same to
the justice secretary, who shall immediately designate and authorize an attorney in his office
to take charge of the case. The lawyer designated shall then file a written petition with the
proper regional trial court, with a prayer that the court take the extradition request under
consideration.3
When the Right to Notice and Hearing Becomes Available
According to private Respondent Jimenez, his right to due process during the preliminary
stage emanates from our Constitution, particularly Section 1, Article III thereof, which
provides:
No person shall be deprived of life, liberty or property without due process of law.
He claims that this right arises immediately, because of the possibility that he may be
provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads:
In case of urgency, a Contracting Party may request the provisional arrest of the
person sought pending presentation of the request for extradition. A request for
provisional arrest may be transmitted through the diplomatic channel or directly
between the Philippine Department of Justice and the United States Department of
Justice.
xxx xxx xxx
Justice Melo's ponencia supports private respondent's contention. It states that there are two
occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a
provisional arrest pending the submission of the extradition request and (2) his temporary
arrest during the pendency of the extradition petition in court.4 The second instance is not in
issue here, because no petition has yet been filed in court.
However, the above-quoted Article 9 on provisional arrest is not automatically operative at all
times, and in enforcement does not depend solely on the discretion of the requested state.
From the wordings of the provision itself, there are at least three requisites: (1) there must be
an urgency, and (2) there is a corresponding request (3) which must be made prior to the
presentation of the request for extradition.
In the instant case, there appears to be no urgency characterizing the nature of the
extradition of private respondent. Petitioner does not claim any such urgency. There is no
request from the United States for the provisional arrest of Mark Jimenez either. And the
secretary of justice states during the Oral Argument that he had no intention of applying for
the provisional arrest of private respondent.5 Finally, the formal request for extradition has
already been made; therefore, provisional arrest is not likely, as it should really come before
the extradition request.6
Mark Jimenez Not in Jeopardy of Arrest
Under the outlined facts of this case, there is no open door for the application of Article 9,
contrary to the apprehension of private respondent. In other words, there is no actual danger
that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat
that his rights would be trampled upon, pending the filing in court of the petition for his
extradition. Hence, there is no substantial gain to be achieved in requiring the foreign affairs
(or justice) secretary to notify and hear him during the preliminary stage, which basically
involves only the exercise of the ministerial power of checking the sufficiency of the
documents attached to the extradition request.
It must be borne in mind that during the preliminary stage, the foreign affairs secretary's
determination of whether the offense charged is extraditable or politically motivated is merely
preliminary. The same issue will be resolved by the trial court. 7 Moreover, it is also the power
and the duty of the court, not the executive authority, to determine whether there is sufficient
evidence to establish probable cause that the extraditee committed the crimes charged. 8 The
sufficiency of the evidence of criminality is to be determined based on the laws of the
requested state.9 Private Respondent Jimenez will, therefore, definitely have his full
opportunity before the court, in case an extradition petition will indeed be filed, to be heard on
all issues including the sufficiency of the documents supporting the extradition request. 10
Private respondent insists that the United States may still request his provisional arrest at any
time. That is purely speculative. It is elementary that this Court does not declare judgments or
grant reliefs based on speculations, surmises or conjectures.
In any event, even granting that the arrest of Jimenez is sought at any time despite the
assurance of the justice secretary that no such measure will be undertaken, our local laws
and rules of procedure respecting the issuance of a warrant of arrest will govern, there being
no specific provision under the Extradition Treaty by which such warrant should issue.
Therefore, Jimenez will be entitled to all the rights accorded by the Constitution and the laws
to any person whose arrest is being sought.1âwphi1.nêt
The right of one state to demand from another the return of an alleged fugitive from justice
and the correlative duty to surrender the fugitive to the demanding country exist only when
created by a treaty between the two countries. International law does not require the
voluntary surrender of a fugitive to a foreign government, absent any treaty stipulation
requiring it.11 When such a treaty does exist, as between the Philippines and the United
States, it must be presumed that the contracting states perform their obligations under it with
uberrimae fidei, treaty obligations being essentially characterized internationally by comity
and mutual respect.
The Need for Respondent Jimenez to Face Charges in the US
One final point. Private respondent also claims that from the time the secretary of foreign
affairs gave due course to the request for his extradition, incalculable prejudice has been
brought upon him. And because of the moral injury caused, he should be given the
opportunity at the earliest possible time to stop his extradition. I believe that any moral injury
suffered by private respondent had not been caused by the mere processing of the
extradition request. And it will not cease merely by granting him the opportunity to be heard
by the executive authority. The concrete charges that he has allegedly committed certain
offenses already exist. These charges have been filed in the United States and are part of
public and official records there. Assuming the existence of moral injury, the only means by
which he can restore his good reputation is to prove before the proper judicial authorities in
the US that the charges against him are unfounded. Such restoration cannot be
accomplished by simply contending that the documents supporting the request for his
extradition are insufficient.
Conclusion
In the context of the factual milieu of private respondent, there is really no threat of any
deprivation of his liberty at the present stage of the extradition process. Hence, the
constitutional right to due process — particularly the right to be heard — finds no application.
To grant private respondent's request for copies of the extradition documents and for an
opportunity to comment thereon will constitute "over-due process" and unnecessarily delay
the proceedings.
WHEREFORE, I vote to grant the Petition.
11. G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO,
Petitioner, vs. COMMISSION ON ELECTIONS Respondent.
... [F]reedom to differ is not limited to things that do not matter much. That would be a mere
shadow of freedom. The test of its substance is the right to differ as to things that touch the
heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom to choose is that others may
make different choices – choices we would not make for ourselves, choices we may
disapprove of, even choices that may shock or offend or anger us. However, choices are not
to be legally prohibited merely because they are different, and the right to disagree and
debate about important questions of public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine recognition of, and respect for, diversity
and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions and
demands of morality. In many cases, where moral convictions are concerned, harmony
among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox –
philosophical justifications about what is moral are indispensable and yet at the same time
powerless to create agreement. This Court recognizes, however, that practical solutions are
preferable to ideological stalemates; accommodation is better than intransigence; reason
more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if not
harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a
writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against
the Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009 2 (the
First Assailed Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP
No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the
COMELEC’s refusal to accredit Ang Ladlad as a party-list organization under Republic Act
(RA) No. 7941, otherwise known as the Party-List System Act.4
Ang Ladlad is an organization composed of men and women who identify themselves as
lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang
Ladlad first applied for registration with the COMELEC in 2006. The application for
accreditation was denied on the ground that the organization had no substantial membership
base. On August 17, 2009, Ang Ladlad again filed a Petition5 for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and
under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and
violence; that because of negative societal attitudes, LGBTs are constrained to hide their
sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by
this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang Ladlad
laid out its national membership base consisting of individual members and organizational
supporters, and outlined its platform of governance.7
On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second
Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian,
Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly disadvantaged because
of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to,
and intimate and sexual relations with, individuals of a different gender, of the same gender,
or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality
which offends religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did change the
natural use into that which is against nature: And likewise also the men, leaving the natural
use of the woman, burned in their lust one toward another; men with men working that which
is unseemly, and receiving in themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a people
transgressing beyond bounds." (7.81) "And we rained down on them a shower (of brimstone):
Then see what was the end of those who indulged in sin and crime!" (7:84) "He said: "O my
Lord! Help Thou me against people who do mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par.
6F: ‘Consensual partnerships or relationships by gays and lesbians who are already of age’.
It is further indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men
Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is
the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or
accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are
deemed part of the requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act,
omission, establishment, business, condition of property, or anything else which x x x (3)
shocks, defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient, provided they are
not contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil
Code provides that ‘Contracts whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy’ are inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as
amended, penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent
shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. —
The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or
both such imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
2. (a) The authors of obscene literature, published with their knowledge in any form; the
editors publishing such literature; and the owners/operators of the establishment selling the
same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or
immoral plays, scenes, acts or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows, whether live or in film, which are
prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes;
(2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3)
offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are
contrary to law, public order, morals, good customs, established policies, lawful orders,
decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature
which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines
but likewise for not being truthful when it said that it "or any of its nominees/party-list
representatives have not violated or failed to comply with laws, rules, or regulations relating to
the elections."
Furthermore, should this Commission grant the petition, we will be exposing our youth to an
environment that does not conform to the teachings of our faith. Lehman Strauss, a famous
bible teacher and writer in the U.S.A. said in one article that "older practicing homosexuals
are a threat to the youth." As an agency of the government, ours too is the State’s avowed
duty under Section 13, Article II of the Constitution to protect our youth from moral and
spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First
Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and
Armando Velasco), while three commissioners voted to deny Ang Ladlad’s Motion for
Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his
Separate Opinion, upheld the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system. Even
assuming that it has properly proven its under-representation and marginalization, it cannot
be said that Ladlad’s expressed sexual orientations per se would benefit the nation as a
whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of
electing congressional representatives is to enable Filipino citizens belonging to marginalized
and under-represented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the House of
Representatives.
If entry into the party-list system would depend only on the ability of an organization to
represent its constituencies, then all representative organizations would have found
themselves into the party-list race. But that is not the intention of the framers of the law. The
party-list system is not a tool to advocate tolerance and acceptance of misunderstood
persons or groups of persons. Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the nation’s – only that their
interests have not been brought to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to justify that having mixed sexual
orientations and transgender identities is beneficial to the nation, its application for
accreditation under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence,
courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special
class" of individuals. x x x Significantly, it has also been held that homosexuality is not a
constitutionally protected fundamental right, and that "nothing in the U.S. Constitution
discloses a comparable intent to protect or promote the social or legal equality of homosexual
relations," as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there
can be no denying that Ladlad constituencies are still males and females, and they will
remain either male or female protected by the same Bill of Rights that applies to all citizens
alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim religious
practices. Neither is there any attempt to any particular religious group’s moral rules on
Ladlad. Rather, what are being adopted as moral parameters and precepts are generally
accepted public morals. They are possibly religious-based, but as a society, the Philippines
cannot ignore its more than 500 years of Muslim and Christian upbringing, such that some
moral precepts espoused by said religions have sipped [sic] into society and these are not
publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the land. Article
201 of the Revised Penal Code imposes the penalty of prision mayor upon "Those who shall
publicly expound or proclaim doctrines openly contrary to public morals." It penalizes
"immoral doctrines, obscene publications and exhibition and indecent shows." "Ang Ladlad"
apparently falls under these legal provisions. This is clear from its Petition’s paragraph 6F:
"Consensual partnerships or relationships by gays and lesbians who are already of age’ It is
further indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having
Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694
of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x x which
shocks, defies or disregards decency or morality x x x." These are all unlawful. 10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed
Resolutions and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang
Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the
COMELEC, which had previously announced that it would begin printing the final ballots for
the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment
on behalf of COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a
Comment, however, the OSG filed a Motion for Extension, requesting that it be given until
January 16, 2010 to Comment.12 Somewhat surprisingly, the OSG later filed a Comment in
support of petitioner’s application.13 Thus, in order to give COMELEC the opportunity to fully
ventilate its position, we required it to file its own comment.14 The COMELEC, through its Law
Department, filed its Comment on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a temporary restraining order
on January 12, 2010, effective immediately and continuing until further orders from this Court,
directing the COMELEC to cease and desist from implementing the Assailed Resolutions. 16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to
Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17
The CHR opined that the denial of Ang Ladlad’s petition on moral grounds violated the
standards and principles of the Constitution, the Universal Declaration of Human Rights
(UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January
19, 2010, we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene 18 which motion
was granted on February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by
using religious dogma, violated the constitutional guarantees against the establishment of
religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional
rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as
constituted violations of the Philippines’ international obligations against discrimination based
on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in
denying petitioner’s application for registration since there was no basis for COMELEC’s
allegations of immorality. It also opined that LGBTs have their own special interests and
concerns which should have been recognized by the COMELEC as a separate classification.
However, insofar as the purported violations of petitioner’s freedom of speech, expression,
and assembly were concerned, the OSG maintained that there had been no restrictions on
these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and
genuine national political agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued for the first time that the LGBT sector is not
among the sectors enumerated by the Constitution and RA 7941, and that petitioner made
untruthful statements in its petition when it alleged its national existence contrary to actual
verification reports by COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT
sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or
related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said
sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals) may be
registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections,20 "the enumeration of marginalized and under-
represented sectors is not exclusive". The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization complies with the requirements
of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition when it
alleged that it had nationwide existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel, it was shown that "save for a
few isolated places in the country, petitioner does not exist in almost all provinces in the
country."21
This argument that "petitioner made untruthful statements in its petition when it alleged its
national existence" is a new one; previously, the COMELEC claimed that petitioner was "not
being truthful when it said that it or any of its nominees/party-list representatives have not
violated or failed to comply with laws, rules, or regulations relating to the elections." Nowhere
was this ground for denial of petitioner’s accreditation mentioned or even alluded to in the
Assailed Resolutions. This, in itself, is quite curious, considering that the reports of
petitioner’s alleged non-existence were already available to the COMELEC prior to the
issuance of the First Assailed Resolution. At best, this is irregular procedure; at worst, a
belated afterthought, a change in respondent’s theory, and a serious violation of petitioner’s
right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Ladlad’s initial petition shows that it never claimed to exist in each province of the Philippines.
Rather, petitioner alleged that the LGBT community in the Philippines was estimated to
constitute at least 670,000 persons; that it had 16,100 affiliates and members around the
country, and 4,044 members in its electronic discussion group.22 Ang Ladlad also
represented itself to be "a national LGBT umbrella organization with affiliates around the
Philippines composed of the following LGBT networks:"
§ Abra Gay Association
§ Aklan Butterfly Brigade (ABB) – Aklan
§ Albay Gay Association
§ Arts Center of Cabanatuan City – Nueva Ecija
§ Boys Legion – Metro Manila
§ Cagayan de Oro People Like Us (CDO PLUS)
§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
§ Cebu Pride – Cebu City
§ Circle of Friends
§ Dipolog Gay Association – Zamboanga del Norte
§ Gay, Bisexual, & Transgender Youth Association (GABAY)
§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila
§ Gay Men’s Support Group (GMSG) – Metro Manila
§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
§ Iloilo City Gay Association – Iloilo City
§ Kabulig Writer’s Group – Camarines Sur
§ Lesbian Advocates Philippines, Inc. (LEAP)
§ LUMINA – Baguio City
§ Marikina Gay Association – Metro Manila
§ Metropolitan Community Church (MCC) – Metro Manila
§ Naga City Gay Association – Naga City
§ ONE BACARDI
§ Order of St. Aelred (OSAe) – Metro Manila
§ PUP LAKAN
§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
§ San Jose del Monte Gay Association – Bulacan
§ Sining Kayumanggi Royal Family – Rizal
§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila
§ Soul Jive – Antipolo, Rizal
§ The Link – Davao City
§ Tayabas Gay Association – Quezon
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it
is no surprise that they found that petitioner had no presence in any of these regions. In fact,
if COMELEC’s findings are to be believed, petitioner does not even exist in Quezon City,
which is registered as Ang Ladlad’s principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance
with the legal requirements for accreditation. Indeed, aside from COMELEC’s moral objection
and the belated allegation of non-existence, nowhere in the records has the respondent ever
found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any
of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference,
COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in religious matters."24 Clearly,
"governmental reliance on religious justification is inconsistent with this policy of neutrality."25
We thus find that it was grave violation of the non-establishment clause for the COMELEC to
utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should
depend, instead, on whether the COMELEC is able to advance some justification for its
rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act
for secular purposes and in ways that have primarily secular effects. As we held in Estrada v.
Escritor:26
x x x The morality referred to in the law is public and necessarily secular, not religious as the
dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may
influence the civil public order but public moral disputes may be resolved only on grounds
articulable in secular terms." Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals would require
conformity to what some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a "compelled religion," anathema to religious freedom. Likewise, if government
based its actions upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views that would not support
the policy. As a result, government will not provide full religious freedom for all its citizens, or
even make it appear that those whose beliefs are disapproved are second-class
citizens.1avvphi1
In other words, government action, including its proscription of immorality as expressed in
criminal law like concubinage, must have a secular purpose. That is, the government
proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society" and not because the conduct is
proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments
based on religion might have a compelling influence on those engaged in public deliberations
over what actions would be considered a moral disapprobation punishable by law. After all,
they might also be adherents of a religion and thus have religious opinions and moral codes
with a compelling influence on them; the human mind endeavors to regulate the temporal and
spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly
put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it
must have an articulable and discernible secular purpose and justification to pass scrutiny of
the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine constitution's religion clauses
prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same time strive to uphold
religious liberty to the greatest extent possible within flexible constitutional limits. Thus,
although the morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend compelling state
interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and
homosexual conduct may be religion-based, it has long been transplanted into generally
accepted public morals. The COMELEC argues:
Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs
but because of the danger it poses to the people especially the youth. Once it is recognized
by the government, a sector which believes that there is nothing wrong in having sexual
relations with individuals of the same gender is a bad example. It will bring down the standard
of morals we cherish in our civilized society. Any society without a set of moral precepts is in
danger of losing its own existence.28
We are not blind to the fact that, through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to
imagine the reasons behind this censure – religious beliefs, convictions about the
preservation of marriage, family, and procreation, even dislike or distrust of homosexuals
themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not
seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted
public morals" have not been convincingly transplanted into the realm of law. 29
The Assailed Resolutions have not identified any specific overt immoral act performed by Ang
Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that
the group’s members have committed or are committing immoral acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a different
gender, or more than one gender, but mere attraction does not translate to immoral acts.
There is a great divide between thought and action. Reduction ad absurdum. If immoral
thoughts could be penalized, COMELEC would have its hands full of disqualification cases
against both the "straights" and the gays." Certainly this is not the intendment of the law. 31
Respondent has failed to explain what societal ills are sought to be prevented, or why special
protection is required for the youth. Neither has the COMELEC condescended to justify its
position that petitioner’s admission into the party-list system would be so harmful as to
irreparably damage the moral fabric of society. We, of course, do not suggest that the state is
wholly without authority to regulate matters concerning morality, sexuality, and sexual
relations, and we recognize that the government will and should continue to restrict behavior
considered detrimental to society. Nonetheless, we cannot countenance advocates who,
undoubtedly with the loftiest of intentions, situate morality on one end of an argument or
another, without bothering to go through the rigors of legal reasoning and explanation. In this,
the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will
not remove an issue from our scrutiny.
We also find the COMELEC’s reference to purported violations of our penal and civil laws
flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as
"any act, omission, establishment, condition of property, or anything else which shocks,
defies, or disregards decency or morality," the remedies for which are a prosecution under
the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial
proceedings.32 A violation of Article 201 of the Revised Penal Code, on the other hand,
requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be
emphasized that mere allegation of violation of laws is not proof, and a mere blanket
invocation of public morals cannot replace the institution of civil or criminal proceedings and a
judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list system. The
denial of Ang Ladlad’s registration on purely moral grounds amounts more to a statement of
dislike and disapproval of homosexuals, rather than a tool to further any substantial public
interest. Respondent’s blanket justifications give rise to the inevitable conclusion that the
COMELEC targets homosexuals themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall
any person be denied equal protection of the laws," courts have never interpreted the
provision as an absolute prohibition on classification. "Equality," said Aristotle, "consists in the
same treatment of similar persons."33 The equal protection clause guarantees that no person
or class of persons shall be deprived of the same protection of laws which is enjoyed by other
persons or other classes in the same place and in like circumstances. 34
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the classification as long as it bears a rational
relationship to some legitimate government end. 35 In Central Bank Employees Association,
Inc. v. Banko Sentral ng Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of
analysis of equal protection challenges x x x have followed the ‘rational basis’ test, coupled
with a deferential attitude to legislative classifications and a reluctance to invalidate a law
unless there is a showing of a clear and unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population considers homosexual
conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the
petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such
belief. No law exists to criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here – that is, moral disapproval of an
unpopular minority – is not a legitimate state interest that is sufficient to satisfy rational basis
review under the equal protection clause. The COMELEC’s differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that
would benefit the nation, furthers no legitimate state interest other than disapproval of or
dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have
the same interest in participating in the party-list system on the same basis as other political
parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of
general application should apply with equal force to LGBTs, and they deserve to participate in
the party-list system on the same basis as other marginalized and under-represented sectors.
It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under different circumstances would
similarly fail. We disagree with the OSG’s position that homosexuals are a class in
themselves for the purposes of the equal protection clause.38 We are not prepared to single
out homosexuals as a separate class meriting special or differentiated treatment. We have
not received sufficient evidence to this effect, and it is simply unnecessary to make such a
ruling today. Petitioner itself has merely demanded that it be recognized under the same
basis as all other groups similarly situated, and that the COMELEC made "an unwarranted
and impermissible classification not justified by the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda and attempt to
persuade society of the validity of its position through normal democratic means. 39 It is in the
public square that deeply held convictions and differing opinions should be distilled and
deliberated upon. As we held in Estrada v. Escritor:40
In a democracy, this common agreement on political and moral ideas is distilled in the public
square. Where citizens are free, every opinion, every prejudice, every aspiration, and every
moral discernment has access to the public square where people deliberate the order of their
life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing
religious belief, and these citizens have equal access to the public square. In this
representative democracy, the state is prohibited from determining which convictions and
moral judgments may be proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule is a necessary principle in
this democratic governance. Thus, when public deliberation on moral judgments is finally
crystallized into law, the laws will largely reflect the beliefs and preferences of the majority,
i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and
accepting a constitution and the limits it specifies – including protection of religious freedom
"not only for a minority, however small – not only for a majority, however large – but for each
of us" – the majority imposes upon itself a self-denying ordinance. It promises not to do what
it otherwise could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic society,
and this freedom applies not only to those that are favorably received but also to those that
offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the
legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or
this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly
not free to interfere with speech for no better reason than promoting an approved message or
discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal in
this country. It follows that both expressions concerning one’s homosexuality and the activity
of forming a political association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public
perception that homosexual conduct violates public morality does not justify criminalizing
same-sex conduct.41 European and United Nations judicial decisions have ruled in favor of
gay rights claimants on both privacy and equality grounds, citing general privacy and equal
protection provisions in foreign and international texts.42 To the extent that there is much to
learn from other jurisdictions that have reflected on the issues we face here, such
jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on
Philippine courts, may nevertheless have persuasive influence on the Court’s analysis.
In the area of freedom of expression, for instance, United States courts have ruled that
existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order
to justify the prohibition of a particular expression of opinion, public institutions must show
that their actions were caused by "something more than a mere desire to avoid the discomfort
and unpleasantness that always accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of ideas and beliefs, in Europe,
with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has
repeatedly stated that a political party may campaign for a change in the law or the
constitutional structures of a state if it uses legal and democratic means and the changes it
proposes are consistent with democratic principles. The ECHR has emphasized that political
ideas that challenge the existing order and whose realization is advocated by peaceful means
must be afforded a proper opportunity of expression through the exercise of the right of
association, even if such ideas may seem shocking or unacceptable to the authorities or the
majority of the population.44 A political group should not be hindered solely because it seeks
to publicly debate controversial political issues in order to find solutions capable of satisfying
everyone concerned.45 Only if a political party incites violence or puts forward policies that are
incompatible with democracy does it fall outside the protection of the freedom of association
guarantee.46
We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the
other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However, as far as this
Court is concerned, our democracy precludes using the religious or moral views of one part of
the community to exclude from consideration the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants.
It well may be that this Decision will only serve to highlight the discrepancy between the rigid
constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We
do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong
consensus favorable to gay rights claims and we neither attempt nor expect to affect
individual perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent punishment
imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily
associate, then there has been no restriction on their freedom of expression or association.
The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly denied.
[COMELEC] simply exercised its authority to review and verify the qualifications of petitioner
as a sectoral party applying to participate in the party-list system. This lawful exercise of duty
cannot be said to be a transgression of Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of the petitioner to
freely take part in the conduct of elections. Their right to vote will not be hampered by said
denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends that the denial
of Ang Ladlad’s petition has the clear and immediate effect of limiting, if not outrightly
nullifying the capacity of its members to fully and equally participate in public life through
engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but a privilege subject to
limitations imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate
in the party-list system, and – as advanced by the OSG itself – the moral objection offered by
the COMELEC was not a limitation imposed by law. To the extent, therefore, that the
petitioner has been precluded, because of COMELEC’s action, from publicly expressing its
views as a political party and participating on an equal basis in the political process with other
equally-qualified party-list candidates, we find that there has, indeed, been a transgression of
petitioner’s fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt to bring
about a more just and humane world order. For individuals and groups struggling with
inadequate structural and governmental support, international human rights norms are
particularly significant, and should be effectively enforced in domestic legal systems so that
such norms may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and promote
human rights. In particular, we explicitly recognize the principle of non-discrimination as it
relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on any ground such as
race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general application
relating to elections be applied equally to all persons, regardless of sexual orientation.
Although sexual orientation is not specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined
that the reference to "sex" in Article 26 should be construed to include "sexual orientation." 48
Additionally, a variety of United Nations bodies have declared discrimination on the basis of
sexual orientation to be prohibited under various international agreements. 49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through
freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will
of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
participation is elaborated by the Human Rights Committee in its General Comment No. 25
(Participation in Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in
the conduct of public affairs, the right to vote and to be elected and the right to have access
to public service. Whatever form of constitution or government is in force, the Covenant
requires States to adopt such legislative and other measures as may be necessary to ensure
that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the
core of democratic government based on the consent of the people and in conformity with the
principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to stand for elective office
ensures that persons entitled to vote have a free choice of candidates. Any restrictions on the
right to stand for election, such as minimum age, must be justifiable on objective and
reasonable criteria. Persons who are otherwise eligible to stand for election should not be
excluded by unreasonable or discriminatory requirements such as education, residence or
descent, or by reason of political affiliation. No person should suffer discrimination or
disadvantage of any kind because of that person's candidacy. States parties should indicate
and explain the legislative provisions which exclude any group or category of persons from
elective office.50
We stress, however, that although this Court stands willing to assume the responsibility of
giving effect to the Philippines’ international law obligations, the blanket invocation of
international law is not the panacea for all social ills. We refer now to the petitioner’s
invocation of the Yogyakarta Principles (the Application of International Human Rights Law In
Relation to Sexual Orientation and Gender Identity),51 which petitioner declares to reflect
binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms
that are obligatory on the Philippines. There are declarations and obligations outlined in said
Principles which are not reflective of the current state of international law, and do not find
basis in any of the sources of international law enumerated under Article 38(1) of the Statute
of the International Court of Justice.52 Petitioner has not undertaken any objective and
rigorous analysis of these alleged principles of international law to ascertain their true status.
We also hasten to add that not everything that society – or a certain segment of society –
wants or demands is automatically a human right. This is not an arbitrary human intervention
that may be added to or subtracted from at will. It is unfortunate that much of what passes for
human rights today is a much broader context of needs that identifies many social desires as
rights in order to further claims that international law obliges states to sanction these
innovations. This has the effect of diluting real human rights, and is a result of the notion that
if "wants" are couched in "rights" language, then they are no longer controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration
formulated by various international law professors, are – at best – de lege ferenda – and do
not constitute binding obligations on the Philippines. Indeed, so much of contemporary
international law is characterized by the "soft law" nomenclature, i.e., international law is full
of principles that promote international cooperation, harmony, and respect for human rights,
most of which amount to no more than well-meaning desires, without the support of either
State practice or opinio juris.53
As a final note, we cannot help but observe that the social issues presented by this case are
emotionally charged, societal attitudes are in flux, even the psychiatric and religious
communities are divided in opinion. This Court’s role is not to impose its own view of
acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can,
uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient
enough to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on
Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are
hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioner’s
application for party-list accreditation.
SO ORDERED.
SEPARATE CONCURRING OPINION
PUNO, C.J.:
I concur with the groundbreaking ponencia of my esteemed colleague, Mr. Justice Mariano C.
del Castillo. Nonetheless, I respectfully submit this separate opinion to underscore some
points that I deem significant.
FIRST. The assailed Resolutions of the Commission on Elections (COMELEC) run afoul of
the non-establishment clause1 of the Constitution. There was cypher effort on the part of the
COMELEC to couch its reasoning in legal – much less constitutional – terms, as it denied
Ang Ladlad’s petition for registration as a sectoral party principally on the ground that it
"tolerates immorality which offends religious (i.e., Christian2 and Muslim3) beliefs." To be
sure, the COMELEC’s ruling is completely antithetical to the fundamental rule that "[t]he
public morality expressed in the law is necessarily secular[,] for in our constitutional order, the
religion clauses prohibit the state from establishing a religion, including the morality it
sanctions."4 As we explained in Estrada v. Escritor,5 the requirement of an articulable and
discernible secular purpose is meant to give flesh to the constitutional policy of full religious
freedom for all, viz.:
Religion also dictates "how we ought to live" for the nature of religion is not just to know, but
often, to act in accordance with man's "views of his relations to His Creator." But the
Establishment Clause puts a negative bar against establishment of this morality arising from
one religion or the other, and implies the affirmative "establishment" of a civil order for the
resolution of public moral disputes. This agreement on a secular mechanism is the price of
ending the "war of all sects against all"; the establishment of a secular public moral order is
the social contract produced by religious truce.
Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code
of Professional Responsibility for lawyers, or "public morals" in the Revised Penal Code, or
"morals" in the New Civil Code, or "moral character" in the Constitution, the distinction
between public and secular morality on the one hand, and religious morality, on the other,
should be kept in mind. The morality referred to in the law is public and necessarily secular,
not religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in
public debate may influence the civil public order but public moral disputes may be resolved
only on grounds articulable in secular terms." Otherwise, if government relies upon religious
beliefs in formulating public policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious programs or agenda. The non-
believers would therefore be compelled to conform to a standard of conduct buttressed by a
religious belief, i.e., to a "compelled religion;" anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly approve or endorse that
belief and thereby also tacitly disapprove contrary religious or non-religious views that would
not support the policy. As a result, government will not provide full religious freedom for all its
citizens, or even make it appear that those whose beliefs are disapproved are second-class
citizens. Expansive religious freedom therefore requires that government be neutral in
matters of religion; governmental reliance upon religious justification is inconsistent with this
policy of neutrality.6 (citations omitted and italics supplied)
Consequently, the assailed resolutions of the COMELEC are violative of the constitutional
directive that no religious test shall be required for the exercise of civil or political rights.7 Ang
Ladlad’s right of political participation was unduly infringed when the COMELEC, swayed by
the private biases and personal prejudices of its constituent members, arrogated unto itself
the role of a religious court or worse, a morality police.
The COMELEC attempts to disengage itself from this "excessive entanglement"8 with religion
by arguing that we "cannot ignore our strict religious upbringing, whether Christian or
Muslim"9 since the "moral precepts espoused by [these] religions have slipped into society
and … are now publicly accepted moral norms."10 However, as correctly observed by Mr.
Justice del Castillo, the Philippines has not seen fit to disparage homosexual conduct as to
actually criminalize it. Indeed, even if the State has legislated to this effect, the law is
vulnerable to constitutional attack on privacy grounds.11 These alleged "generally accepted
public morals" have not, in reality, crossed over from the religious to the secular sphere.
Some people may find homosexuality and bisexuality deviant, odious, and offensive.
Nevertheless, private discrimination, however unfounded, cannot be attributed or ascribed to
the State. Mr. Justice Kennedy, speaking for the United States (U.S.) Supreme Court in the
landmark case of Lawrence v. Texas,12 opined:
It must be acknowledged, of course, that the Court in Bowers was making the broader point
that for centuries there have been powerful voices to condemn homosexual conduct as
immoral. The condemnation has been shaped by religious beliefs, conceptions of right and
acceptable behavior, and respect for the traditional family. For many persons these are not
trivial concerns but profound and deep convictions accepted as ethical and moral principles to
which they aspire and which thus determine the course of their lives. These considerations do
not answer the question before us, however. The issue is whether the majority may use the
power of the State to enforce these views on the whole society through operation of the …
law. "Our obligation is to define the liberty of all, not to mandate our own moral code." 13
SECOND. The COMELEC capitalized on Ang Ladlad’s definition of the term "sexual
orientation,"14 as well as its citation of the number of Filipino men who have sex with men, 15
as basis for the declaration that the party espouses and advocates sexual immorality. This
position, however, would deny homosexual and bisexual individuals a fundamental element
of personal identity and a legitimate exercise of personal liberty. For, the "ability to
[independently] define one’s identity that is central to any concept of liberty" cannot truly be
exercised in a vacuum; we all depend on the "emotional enrichment from close ties with
others."16 As Mr. Justice Blackmun so eloquently said in his stinging dissent in Bowers v.
Hardwick17 (overturned by the United States Supreme Court seventeen years later in
Lawrence v. Texas18):
Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key
relationship of human existence, central to family life, community welfare, and the
development of human personality[.]"19 The fact that individuals define themselves in a
significant way through their intimate sexual relationships with others suggests, in a Nation as
diverse as ours, that there may be many "right" ways of conducting those relationships, and
that much of the richness of a relationship will come from the freedom an individual has to
choose the form and nature of these intensely personal bonds.20
In a variety of circumstances we have recognized that a necessary corollary of giving
individuals freedom to choose how to conduct their lives is acceptance of the fact that
different individuals will make different choices. For example, in holding that the clearly
important state interest in public education should give way to a competing claim by the
Amish to the effect that extended formal schooling threatened their way of life, the Court
declared: "There can be no assumption that today's majority is ‘right’ and the Amish and
others like them are ‘wrong.’ A way of life that is odd or even erratic but interferes with no
rights or interests of others is not to be condemned because it is different."21 The Court
claims that its decision today merely refuses to recognize a fundamental right to engage in
homosexual sodomy; what the Court really has refused to recognize is the fundamental
interest all individuals have in controlling the nature of their intimate associations with others.
(italics supplied)
It has been said that freedom extends beyond spatial bounds.22 Liberty presumes an
autonomy of self that includes freedom of thought, belief, expression, and certain intimate
conduct.23 These matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty
protected by the due process clause.24 At the heart of liberty is the right to define one’s own
concept of existence, of meaning, of the universe, and of the mystery of human life. 25 Beliefs
about these matters could not define the attributes of personhood were they formed under
compulsion of the State.26 Lawrence v. Texas27 is again instructive:
To say that the issue in Bowers was simply the right to engage in certain sexual conduct
demeans the claim the individual put forward, just as it would demean a married couple were
it to be said marriage is simply about the right to have sexual intercourse. The laws involved
in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a
particular sexual act. Their penalties and purposes, though, have more far-reaching
consequences, touching upon the most private human conduct, sexual behavior, and in the
most private of places, the home. The statutes do seek to control a personal relationship that,
whether or not entitled to formal recognition in the law, is within the liberty of persons to
choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the
meaning of the relationship or to set its boundaries absent injury to a person or abuse of an
institution the law protects. It suffices for us to acknowledge that adults may choose to enter
upon this relationship in the confines of their homes and their own private lives and still retain
their dignity as free persons. When sexuality finds overt expression in intimate conduct with
another person, the conduct can be but one element in a personal bond that is more
enduring. The liberty protected by the Constitution allows homosexual persons the right to
make this choice. (italics supplied)
THIRD. The ponencia of Mr. Justice del Castillo refused to characterize homosexuals and
bisexuals as a class in themselves for purposes of the equal protection clause. Accordingly, it
struck down the assailed Resolutions using the most liberal basis of judicial scrutiny, the
rational basis test, according to which government need only show that the challenged
classification is rationally related to serving a legitimate state interest.
I humbly submit, however, that a classification based on gender or sexual orientation is a
quasi-suspect classification, as to trigger a heightened level of review.
Preliminarily, in our jurisdiction, the standard and analysis of equal protection challenges in
the main have followed the rational basis test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a clear and
unequivocal breach of the Constitution.28 However, Central Bank Employees Association, Inc.
v. Bangko Sentral ng Pilipinas,29 carved out an exception to this general rule, such that
prejudice to persons accorded special protection by the Constitution requires stricter judicial
scrutiny than mere rationality, viz.:
Congress retains its wide discretion in providing for a valid classification, and its policies
should be accorded recognition and respect by the courts of justice except when they run
afoul of the Constitution. The deference stops where the classification violates a fundamental
right, or prejudices persons accorded special protection by the Constitution. When these
violations arise, this Court must discharge its primary role as the vanguard of constitutional
guaranties, and require a stricter and more exacting adherence to constitutional limitations.
Rational basis should not suffice. (citations omitted and italics supplied)
Considering thus that labor enjoys such special and protected status under our fundamental
law, the Court ruled in favor of the Central Bank Employees Association, Inc. in this wise:
While R.A. No. 7653 started as a valid measure well within the legislature's power, we hold
that the enactment of subsequent laws exempting all rank-and-file employees of other GFIs
leeched all validity out of the challenged proviso.
xxxx
According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also
violative of the equal protection clause because after it was enacted, the charters of the
GSIS, LBP, DBP and SSS were also amended, but the personnel of the latter GFIs were all
exempted from the coverage of the SSL. Thus, within the class of rank-and-file personnel of
GFIs, the BSP rank-and-file are also discriminated upon.
Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress
also undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three
other GFIs, from 1995 to 2004, viz.:
xxxx
It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs
share this common proviso: a blanket exemption of all their employees from the coverage of
the SSL, expressly or impliedly...
xxxx
The abovementioned subsequent enactments, however, constitute significant changes in
circumstance that considerably alter the reasonability of the continued operation of the last
proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing the proviso to
more serious scrutiny. This time, the scrutiny relates to the constitutionality of the
classification — albeit made indirectly as a consequence of the passage of eight other laws
— between the rank-and-file of the BSP and the seven other GFIs. The classification must
not only be reasonable, but must also apply equally to all members of the class. The proviso
may be fair on its face and impartial in appearance but it cannot be grossly discriminatory in
its operation, so as practically to make unjust distinctions between persons who are without
differences.
Stated differently, the second level of inquiry deals with the following questions: Given that
Congress chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the
exclusion of the rank-and-file employees of the BSP stand constitutional scrutiny in the light
of the fact that Congress did not exclude the rank-and-file employees of the other GFIs? Is
Congress' power to classify so unbridled as to sanction unequal and discriminatory treatment,
simply because the inequity manifested itself, not instantly through a single overt act, but
gradually and progressively, through seven separate acts of Congress? Is the right to equal
protection of the law bounded in time and space that: (a) the right can only be invoked
against a classification made directly and deliberately, as opposed to a discrimination that
arises indirectly, or as a consequence of several other acts; and (b) is the legal analysis
confined to determining the validity within the parameters of the statute or ordinance (where
the inclusion or exclusion is articulated), thereby proscribing any evaluation vis-à-vis the
grouping, or the lack thereof, among several similar enactments made over a period of time?
In this second level of scrutiny, the inequality of treatment cannot be justified on the mere
assertion that each exemption (granted to the seven other GFIs) rests "on a policy
determination by the legislature." All legislative enactments necessarily rest on a policy
determination — even those that have been declared to contravene the Constitution. Verily, if
this could serve as a magic wand to sustain the validity of a statute, then no due process and
equal protection challenges would ever prosper. There is nothing inherently sacrosanct in a
policy determination made by Congress or by the Executive; it cannot run riot and overrun the
ramparts of protection of the Constitution.
xxxx
In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there
are no characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the
exemption which BSP rank-and-file employees were denied (not to mention the anomaly of
the SEC getting one). The distinction made by the law is not only superficial, but also
arbitrary. It is not based on substantial distinctions that make real differences between the
BSP rank-and-file and the seven other GFIs.
xxxx
The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven
GFIs definitely bears the unmistakable badge of invidious discrimination — no one can, with
candor and fairness, deny the discriminatory character of the subsequent blanket and total
exemption of the seven other GFIs from the SSL when such was withheld from the BSP.
Alikes are being treated as unalikes without any rational basis.
xxxx
Thus, the two-tier analysis made in the case at bar of the challenged provision, and its
conclusion of unconstitutionality by subsequent operation, are in cadence and in consonance
with the progressive trend of other jurisdictions and in international law. There should be no
hesitation in using the equal protection clause as a major cutting edge to eliminate every
conceivable irrational discrimination in our society. Indeed, the social justice imperatives in
the Constitution, coupled with the special status and protection afforded to labor, compel this
approach.
Apropos the special protection afforded to labor under our Constitution and international law,
we held in International School Alliance of Educators v. Quisumbing:
That public policy abhors inequality and discrimination is beyond contention. Our Constitution
and laws reflect the policy against these evils. The Constitution in the Article on Social Justice
and Human Rights exhorts Congress to "give highest priority to the enactment of measures
that protect and enhance the right of all people to human dignity, reduce social, economic,
and political inequalities." The very broad Article 19 of the Civil Code requires every person,
"in the exercise of his rights and in the performance of his duties, [to] act with justice, give
everyone his due, and observe honesty and good faith."
International law, which springs from general principles of law, likewise proscribes
discrimination. General principles of law include principles of equity, i.e., the general
principles of fairness and justice, based on the test of what is reasonable. The Universal
Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural
Rights, the International Convention on the Elimination of All Forms of Racial Discrimination,
the Convention against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation — all embody the general principle
against discrimination, the very antithesis of fairness and justice. The Philippines, through its
Constitution, has incorporated this principle as part of its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor of
capital, inequality and discrimination by the employer are all the more reprehensible.
The Constitution specifically provides that labor is entitled to "humane conditions of work."
These conditions are not restricted to the physical workplace — the factory, the office or the
field — but include as well the manner by which employers treat their employees.
The Constitution also directs the State to promote "equality of employment opportunities for
all." Similarly, the Labor Code provides that the State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an affront to both the spirit and letter of these
provisions if the State, in spite of its primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to unequal and discriminatory terms and conditions
of employment.
xxx xxx xxx
Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7
thereof, provides:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment
of just and [favorable] conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a minimum, with:
i. Fair wages and equal remuneration for work of equal value without distinction of any kind,
in particular women being guaranteed conditions of work not inferior to those enjoyed by
men, with equal pay for equal work;
xxx xxx xxx
The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal
truism of "equal pay for equal work." Persons who work with substantially equal qualifications,
skill, effort and responsibility, under similar conditions, should be paid similar salaries.
xxxx
Under most circumstances, the Court will exercise judicial restraint in deciding questions of
constitutionality, recognizing the broad discretion given to Congress in exercising its
legislative power. Judicial scrutiny would be based on the "rational basis" test, and the
legislative discretion would be given deferential treatment.
But if the challenge to the statute is premised on the denial of a fundamental right, or the
perpetuation of prejudice against persons favored by the Constitution with special protection,
judicial scrutiny ought to be more strict. A weak and watered down view would call for the
abdication of this Court's solemn duty to strike down any law repugnant to the Constitution
and the rights it enshrines. This is true whether the actor committing the unconstitutional act
is a private person or the government itself or one of its instrumentalities. Oppressive acts will
be struck down regardless of the character or nature of the actor.
In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-
employee status. It is akin to a distinction based on economic class and status, with the
higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of
the BSP now receive higher compensation packages that are competitive with the industry,
while the poorer, low-salaried employees are limited to the rates prescribed by the SSL. The
implications are quite disturbing: BSP rank-and-file employees are paid the strictly
regimented rates of the SSL while employees higher in rank — possessing higher and better
education and opportunities for career advancement — are given higher compensation
packages to entice them to stay. Considering that majority, if not all, the rank-and-file
employees consist of people whose status and rank in life are less and limited, especially in
terms of job marketability, it is they — and not the officers — who have the real economic and
financial need for the adjustment. This is in accord with the policy of the Constitution "to free
the people from poverty, provide adequate social services, extend to them a decent standard
of living, and improve the quality of life for all." Any act of Congress that runs counter to this
constitutional desideratum deserves strict scrutiny by this Court before it can pass muster.
(citations omitted and italics supplied)
Corollarily, American case law provides that a state action questioned on equal protection
grounds is subject to one of three levels of judicial scrutiny. The level of review, on a sliding
scale basis, varies with the type of classification utilized and the nature of the right affected. 30
If a legislative classification disadvantages a "suspect class" or impinges upon the exercise of
a "fundamental right," then the courts will employ strict scrutiny and the statute must fall
unless the government can demonstrate that the classification has been precisely tailored to
serve a compelling governmental interest.31 Over the years, the United States Supreme Court
has determined that suspect classes for equal protection purposes include classifications
based on race, religion, alienage, national origin, and ancestry. 32 The underlying rationale of
this theory is that where legislation affects discrete and insular minorities, the presumption of
constitutionality fades because traditional political processes may have broken down. 33 In
such a case, the State bears a heavy burden of justification, and the government action will
be closely scrutinized in light of its asserted purpose.34
On the other hand, if the classification, while not facially invidious, nonetheless gives rise to
recurring constitutional difficulties, or if a classification disadvantages a "quasi-suspect class,"
it will be treated under intermediate or heightened review.35 To survive intermediate scrutiny,
the law must not only further an important governmental interest and be substantially related
to that interest, but the justification for the classification must be genuine and must not
depend on broad generalizations.36 Noteworthy, and of special interest to us in this case,
quasi-suspect classes include classifications based on gender or illegitimacy. 37
If neither strict nor intermediate scrutiny is appropriate, then the statute will be tested for mere
rationality.38 This is a relatively relaxed standard reflecting the Court’s awareness that the
drawing of lines which creates distinctions is peculiarly a legislative task and an unavoidable
one.39 The presumption is in favor of the classification, of the reasonableness and fairness of
state action, and of legitimate grounds of distinction, if any such grounds exist, on which the
State acted.40
Instead of adopting a rigid formula to determine whether certain legislative classifications
warrant more demanding constitutional analysis, the United States Supreme Court has
looked to four factors,41 thus:
(1) The history of invidious discrimination against the class burdened by the legislation; 42
(2) Whether the characteristics that distinguish the class indicate a typical class member's
ability to contribute to society;43
(3) Whether the distinguishing characteristic is "immutable" or beyond the class members'
control;44 and
(4) The political power of the subject class.45
These factors, it must be emphasized, are not constitutive essential elements of a suspect or
quasi-suspect class, as to individually demand a certain weight.46 The U.S. Supreme Court
has applied the four factors in a flexible manner; it has neither required, nor even discussed,
every factor in every case.47 Indeed, no single talisman can define those groups likely to be
the target of classifications offensive to the equal protection clause and therefore warranting
heightened or strict scrutiny; experience, not abstract logic, must be the primary guide. 48
In any event, the first two factors – history of intentional discrimination and relationship of
classifying characteristic to a person's ability to contribute – have always been present when
heightened scrutiny has been applied.49 They have been critical to the analysis and could be
considered as prerequisites to concluding a group is a suspect or quasi-suspect class.50
However, the last two factors – immutability of the characteristic and political powerlessness
of the group – are considered simply to supplement the analysis as a means to discern
whether a need for heightened scrutiny exists.51
Guided by this framework, and considering further that classifications based on sex or gender
– albeit on a male/female, man/woman basis – have been previously held to trigger
heightened scrutiny, I respectfully submit that classification on the basis of sexual orientation
(i.e., homosexuality and/or bisexuality) is a quasi-suspect classification that prompts
intermediate review.
The first consideration is whether homosexuals have suffered a history of purposeful unequal
treatment because of their sexual orientation. 52 One cannot, in good faith, dispute that gay
and lesbian persons historically have been, and continue to be, the target of purposeful and
pernicious discrimination due solely to their sexual orientation.53 Paragraphs 6 and 7 of Ang
Ladlad’s Petition for Registration for party-list accreditation in fact state:
6. There have been documented cases of discrimination and violence perpetuated against
the LGBT Community, among which are:
(a) Effeminate or gay youths being beaten up by their parents and/or guardians to make them
conform to standard gender norms of behavior;
(b) Fathers and/or guardians who allow their daughters who are butch lesbians to be raped[,
so as] to "cure" them into becoming straight women;
(c) Effeminate gays and butch lesbians are kicked out of school, NGOs, and choirs because
of their identity;
(d) Effeminate youths and masculine young women are refused admission from (sic) certain
schools, are suspended or are automatically put on probation;
(e) Denial of jobs, promotions, trainings and other work benefits once one’s sexual orientation
and gender identity is (sic) revealed;
(f) Consensual partnerships or relationships by gays and lesbians who are already of age, are
broken up by their parents or guardians using the [A]nti-kidnapping [L]aw;
(g) Pray-overs, exorcisms, and other religious cures are performed on gays and lesbians to
"reform" them;
(h) Young gays and lesbians are forcibly subjected to psychiatric counseling and therapy to
cure them[,] despite the de-listing (sic) of homosexuality and lesbianism as a mental disorder
by the American Psychiatric Association;
(i) Transgenders, or individuals who were born mail but who self-identity as women and dress
as such, are denied entry or services in certain restaurants and establishments; and
(j) Several murders from the years 2003-3006 were committed against gay men, but were not
acknowledged by police as hate crimes or violent acts of bigotry.
7. In the recent May 2009 US asylum case of Philip Belarmino, he testified that as a young
gay person in the Philippines, he was subjected to a variety of sexual abuse and violence,
including repeated rapes[,] which he could not report to [the] police [or speak of] to his own
parents.
Accordingly, this history of discrimination suggests that any legislative burden placed on
lesbian and gay people as a class is "more likely than others to reflect deep-seated prejudice
rather than legislative rationality in pursuit of some legitimate objective."54
A second relevant consideration is whether the character-in-issue is related to the person’s
ability to contribute to society.55 Heightened scrutiny is applied when the classification bears
no relationship to this ability; the existence of this factor indicates the classification is likely
based on irrelevant stereotypes and prejudice.56 Insofar as sexual orientation is concerned, it
is gainful to repair to Kerrigan v. Commissioner of Public Health, 57 viz.:
The defendants also concede that sexual orientation bears no relation to a person's ability to
participate in or contribute to society, a fact that many courts have acknowledged, as well. x x
x If homosexuals were afflicted with some sort of impediment to their ability to perform and to
contribute to society, the entire phenomenon of ‘staying in the [c]loset’ and of ‘coming out’
would not exist; their impediment would betray their status. x x x In this critical respect, gay
persons stand in stark contrast to other groups that have been denied suspect or quasi-
suspect class recognition, despite a history of discrimination, because the distinguishing
characteristics of those groups adversely affect their ability or capacity to perform certain
functions or to discharge certain responsibilities in society. 58
Unlike the characteristics unique to those groups, however, "homosexuality bears no relation
at all to [an] individual's ability to contribute fully to society."59 Indeed, because an individual's
homosexual orientation "implies no impairment in judgment, stability, reliability or general
social or vocational capabilities";60 the observation of the United States Supreme Court that
race, alienage and national origin -all suspect classes entitled to the highest level of
constitutional protection- "are so seldom relevant to the achievement of any legitimate state
interest that laws grounded in such considerations are deemed to reflect prejudice and
antipathy"61 is no less applicable to gay persons. (italics supplied)
Clearly, homosexual orientation is no more relevant to a person's ability to perform and
contribute to society than is heterosexual orientation.62
A third factor that courts have considered in determining whether the members of a class are
entitled to heightened protection for equal protection purposes is whether the attribute or
characteristic that distinguishes them is immutable or otherwise beyond their control. 63 Of
course, the characteristic that distinguishes gay persons from others and qualifies them for
recognition as a distinct and discrete group is the characteristic that historically has resulted
in their social and legal ostracism, namely, their attraction to persons of the same sex. 64
Immutability is a factor in determining the appropriate level of scrutiny because the inability of
a person to change a characteristic that is used to justify different treatment makes the
discrimination violative of the rather "‘basic concept of our system that legal burdens should
bear some relationship to individual responsibility.’"65 However, the constitutional relevance of
the immutability factor is not reserved to those instances in which the trait defining the
burdened class is absolutely impossible to change.66 That is, the immutability prong of the
suspectness inquiry surely is satisfied when the identifying trait is "so central to a person's
identity that it would be abhorrent for government to penalize a person for refusing to change
[it]."67
Prescinding from these premises, it is not appropriate to require a person to repudiate or
change his or her sexual orientation in order to avoid discriminatory treatment, because a
person's sexual orientation is so integral an aspect of one's identity. 68 Consequently, because
sexual orientation "may be altered [if at all] only at the expense of significant damage to the
individual’s sense of self," classifications based thereon "are no less entitled to consideration
as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an
immutable characteristic."69 Stated differently, sexual orientation is not the type of human trait
that allows courts to relax their standard of review because the barrier is temporary or
susceptible to self-help.70
The final factor that bears consideration is whether the group is "a minority or politically
powerless."71 However, the political powerlessness factor of the level-of-scrutiny inquiry does
not require a showing of absolute political powerlessness.72 Rather, the touchstone of the
analysis should be "whether the group lacks sufficient political strength to bring a prompt end
to the prejudice and discrimination through traditional political means."73
Applying this standard, it would not be difficult to conclude that gay persons are entitled to
heightened constitutional protection despite some recent political progress. 74 The
discrimination that they have suffered has been so pervasive and severe – even though their
sexual orientation has no bearing at all on their ability to contribute to or perform in society –
that it is highly unlikely that legislative enactments alone will suffice to eliminate that
discrimination.75 Furthermore, insofar as the LGBT community plays a role in the political
process, it is apparent that their numbers reflect their status as a small and insular minority.76
It is therefore respectfully submitted that any state action singling lesbians, gays, bisexuals
and trans-genders out for disparate treatment is subject to heightened judicial scrutiny to
ensure that it is not the product of historical prejudice and stereotyping. 77
In this case, the assailed Resolutions of the COMELEC unmistakably fail the intermediate
level of review. Regrettably, they betray no more than bigotry and intolerance; they raise the
inevitable inference that the disadvantage imposed is born of animosity toward the class of
persons affected78 (that is, lesbian, gay, bisexual and trans-gendered individuals). In our
constitutional system, status-based classification undertaken for its own sake cannot
survive.79
FOURTH. It has been suggested that the LGBT community cannot participate in the party-list
system because it is not a "marginalized and underrepresented sector" enumerated either in
the Constitution80 or Republic Act No. (RA) 7941.81 However, this position is belied by our
ruling in Ang Bagong Bayani-OFW Labor Party v. COMELEC,82 where we clearly held that
the enumeration of marginalized and underrepresented sectors in RA 7941 is not exclusive.
I likewise see no logical or factual obstacle to classifying the members of the LGBT
community as marginalized and underrepresented, considering their long history (and indeed,
ongoing narrative) of persecution, discrimination, and pathos. In my humble view,
marginalization for purposes of party-list representation encompasses social marginalization
as well. To hold otherwise is tantamount to trivializing socially marginalized groups as "mere
passive recipients of the State’s benevolence" and denying them the right to "participate
directly [in the mainstream of representative democracy] in the enactment of laws designed to
benefit them."83 The party-list system could not have been conceptualized to perpetuate this
injustice.
Accordingly, I vote to grant the petition.
REYNATO S. PUNO
Chief Justice
DISSENTING OPINION
CORONA, J.:
Stripped of the complicated and contentious issues of morality and religion, I believe the
basic issue here is simple: does petitioner Ang Ladlad LGBT Party qualify, under the terms of
the Constitution and RA 7941, as a marginalized and underrepresented sector in the party-list
system?
The relevant facts are likewise relatively uncomplicated. Petitioner seeks accreditation by the
respondent Commission on Elections as a political organization of a marginalized and
underrepresented sector under the party-list system. Finding that petitioner is not a
marginalized sector under RA 7941, the Commission on Elections denied its petition.
A System For Marginalized
And Underrepresented Sectors
The party-list system is an innovation of the 1987 Constitution. It is essentially a tool for the
advancement of social justice with the fundamental purpose of affording opportunity to
marginalized and underrepresented sectors to participate in the shaping of public policy and
the crafting of national laws. It is premised on the proposition that the advancement of the
interests of the marginalized sectors contributes to the advancement of the common good
and of our nation’s democratic ideals.
But who are the marginalized and underrepresented sectors for whom the party-list system
was designed?
The Texts of the Constitution
And of RA1 7941
The resolution of a constitutional issue primarily requires that the text of the fundamental law
be consulted. Section 5(2), Article VI of the Constitution directs the course of our present
inquiry. It provides:
SEC. 5. x x x
(2) The party-list representatives shall constitute twenty per centum of the total number of
Representatives including those under the party-list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may
be provided by law, except the religious sector. (emphasis supplied)
The Constitution left the matter of determining the groups or sectors that may qualify as
"marginalized" to the hands of Congress. Pursuant to this constitutional mandate, RA 7941 or
the Party-List System Act was enacted in 1995. The law provides:
Section 2. Declaration of policy. — The State shall promote proportional representation in the
election of representatives to the House of Representatives through a party-list system of
registered national, regional and sectoral parties or organizations or coalitions thereof, which
will enable Filipino citizens belonging to marginalized and under-represented sectors,
organizations and parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will benefit the
nation as a whole, to become members of the House of Representatives. Towards this end,
the State shall develop and guarantee a full, free and open party system in order to attain the
broadest possible representation of party, sectoral or group interests in the House of
Representatives by enhancing their chances to compete for and win seats in the legislature,
and shall provide the simplest scheme possible.
xxx xxx xxx
Section 5. Registration. — Any organized group of persons may register as a party,
organization or coalition for purposes of the party-list system by filing with the COMELEC not
later than ninety (90) days before the election a petition verified by its president or secretary
stating its desire to participate in the party-list system as a national, regional or sectoral party
or organization or a coalition of such parties or organizations, attaching thereto its
constitution, by-laws, platform or program of government, list of officers, coalition agreement
and other relevant information as the COMELEC may require: Provided, That the sectors
shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals.
The COMELEC shall publish the petition in at least two (2) national newspapers of general
circulation.
The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15)
days from the date it was submitted for decision but in no case not later than sixty (60) days
before election.
Section 6. Refusal and/or Cancellation of Registration. — The COMELEC may, motu propio
or upon verified complaint of any interested party, refuse or cancel, after due notice and
hearing, the registration of any national, regional or sectoral party, organization or coalition on
any of the following grounds:
(1) It is a religious sect or denomination, organization or association, organized for religious
purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through
third parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per
centum (2%) of the votes cast under the party-list system in the two (2) preceding elections
for the constituency in which it has registered. (emphasis supplied)
The Court’s Previous Pronouncements
As the oracle of the Constitution, this Court divined the intent of the party-list system and
defined its meaning in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections:2
That political parties may participate in the party-list elections does not mean, however, that
any political party -- or any organization or group for that matter -- may do so. The requisite
character of these parties or organizations must be consistent with the purpose of the party-
list system, as laid down in the Constitution and RA 7941. x x x
The Marginalized and Underrepresented to Become Lawmakers Themselves
[Section 2 of RA 7941] mandates a state policy of promoting proportional representation by
means of the Filipino-style party-list system, which will "enable" the election to the House of
Representatives of Filipino citizens,
1. who belong to marginalized and underrepresented sectors, organizations and parties; and
2. who lack well-defined constituencies; but
3. who could contribute to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole.
The key words in this policy are "proportional representation," "marginalized and
underrepresented," and "lack [of] well-defined constituencies."
"Proportional representation" here does not refer to the number of people in a particular
district, because the party-list election is national in scope. Neither does it allude to numerical
strength in a distressed or oppressed group. Rather, it refers to the representation of the
"marginalized and underrepresented" as exemplified by the enumeration in Section 5 of the
law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals."
However, it is not enough for the candidate to claim representation of the marginalized and
underrepresented, because representation is easy to claim and to feign. The party-list
organization or party must factually and truly represent the marginalized and
underrepresented constituencies mentioned in Section 5. Concurrently, the persons
nominated by the party-list candidate-organization must be "Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties."
Finally, "lack of well-defined constituenc[y]" refers to the absence of a traditionally identifiable
electoral group, like voters of a congressional district or territorial unit of government. Rather,
it points again to those with disparate interests identified with the "marginalized or
underrepresented."
In the end, the role of the Comelec is to see to it that only those Filipinos who are
"marginalized and underrepresented" become members of Congress under the party-list
system, Filipino-style.
The intent of the Constitution is clear: to give genuine power to the people, not only by giving
more law to those who have less in life, but more so by enabling them to become veritable
lawmakers themselves. Consistent with this intent, the policy of the implementing law, we
repeat, is likewise clear: "to enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, x x x, to become members of the House
of Representatives." Where the language of the law is clear, it must be applied according to
its express terms.
The marginalized and underrepresented sectors to be represented under the party-list system
are enumerated in Section 5 of RA 7941, which states:
"SEC. 5. Registration. -- Any organized group of persons may register as a party,
organization or coalition for purposes of the party-list system by filing with the COMELEC not
later than ninety (90) days before the election a petition verified by its president or secretary
stating its desire to participate in the party-list system as a national, regional or sectoral party
or organization or a coalition of such parties or organizations, attaching thereto its
constitution, by-laws, platform or program of government, list of officers, coalition agreement
and other relevant information as the COMELEC may require: Provided, that the sector shall
include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals."
While the enumeration of marginalized and underrepresented sectors is not exclusive, it
demonstrates the clear intent of the law that not all sectors can be represented under the
party-list system. It is a fundamental principle of statutory construction that words employed in
a statute are interpreted in connection with, and their meaning is ascertained by reference to,
the words and the phrases with which they are associated or related. Thus, the meaning of a
term in a statute may be limited, qualified or specialized by those in immediate association.
xxx xxx xxx
Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers
cannot be appropriated by the mansion owners of Forbes Park. The interests of these two
sectors are manifestly disparate; hence, the OSG’s position to treat them similarly defies
reason and common sense. In contrast, and with admirable candor, Atty. Lorna Patajo-
Kapunan admitted during the Oral Argument that a group of bankers, industrialists and sugar
planters could not join the party-list system as representatives of their respective sectors.
While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they
are neither marginalized nor underrepresented, for the stark reality is that their economic
clout engenders political power more awesome than their numerical limitation. Traditionally,
political power does not necessarily emanate from the size of one’s constituency; indeed, it is
likely to arise more directly from the number and amount of one’s bank accounts.
It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority
who wallow in poverty, destitution and infirmity. It was for them that the party-list system was
enacted -- to give them not only genuine hope, but genuine power; to give them the
opportunity to be elected and to represent the specific concerns of their constituencies; and
simply to give them a direct voice in Congress and in the larger affairs of the State. In its
noblest sense, the party-list system truly empowers the masses and ushers a new hope for
genuine change. Verily, it invites those marginalized and underrepresented in the past – the
farm hands, the fisher folk, the urban poor, even those in the underground movement – to
come out and participate, as indeed many of them came out and participated during the last
elections. The State cannot now disappoint and frustrate them by disabling and desecrating
this social justice vehicle.
xxx xxx xxx
Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats
under the party-list system would not only dilute, but also prejudice the chance of the
marginalized and underrepresented, contrary to the intention of the law to enhance it. The
party-list system is a tool for the benefit of the underprivileged; the law could not have given
the same tool to others, to the prejudice of the intended beneficiaries.
This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those
who are neither marginalized nor underrepresented. It cannot let that flicker of hope be
snuffed out. The clear state policy must permeate every discussion of the qualification of
political parties and other organizations under the party-list system. (emphasis and
underscoring supplied)
Hence, in Ang Bagong Bayani-OFW Labor Party, the Court stressed that the party-list system
is reserved only for those sectors marginalized and underrepresented in the past (e.g., labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, professionals and even those in the underground
movement who wish to come out and participate). They are those sectors traditionally and
historically marginalized and deprived of an opportunity to participate in the formulation of
national policy although their sectoral interests are also traditionally and historically regarded
as vital to the national interest. That is why Section 2 of RA 7941 speaks of "marginalized and
under-represented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole."
How should the matter of whether a particular sectoral interest is vital to national interest (and
therefore beneficial to the nation as a whole) be determined? Chief Justice Reynato S.
Puno’s opinion3 in Barangay Association for National Advancement and Transparency
(BANAT) v. Commission on Elections4 offers valuable insight:
… Similarly, limiting the party-list system to the marginalized and excluding the major political
parties from participating in the election of their representatives is aligned with the
constitutional mandate to "reduce social, economic, and political inequalities, and remove
cultural inequalities by equitably diffusing wealth and political power for the common good";
the right of the people and their organizations to effective and reasonable participation at all
levels of social, political, and economic decision-making; the right of women to opportunities
that will enhance their welfare and enable them to realize their full potential in the service of
the nation; the right of labor to participate in policy and decision-making processes affecting
their rights and benefits in keeping with its role as a primary social economic force; the right
of teachers to professional advancement; the rights of indigenous cultural communities to the
consideration of their cultures, traditions and institutions in the formulation of national plans
and policies, and the indispensable role of the private sector in the national economy.
As such, the interests of marginalized sectors are by tradition and history vital to national
interest and therefore beneficial to the nation as a whole because the Constitution declares a
national policy recognizing the role of these sectors in the nation’s life. In other words, the
concept of marginalized and underrepresented sectors under the party-list scheme has been
carefully refined by concrete examples involving sectors deemed to be significant in our legal
tradition. They are essentially sectors with a constitutional bond, that is, specific sectors
subject of specific provisions in the Constitution, namely, labor, 5 peasant,6 urban poor,7
indigenous cultural communities,8 women,9 youth,10 veterans,11 fisherfolk,12 elderly,13
handicapped,14 overseas workers15 and professionals.16
The premise is that the advancement of the interests of these important yet traditionally and
historically marginalized sectors promotes the national interest. The Filipino people as a
whole are benefited by the empowerment of these sectors.
The long-muffled voices of marginalized sectors must be heard because their respective
interests are intimately and indispensably woven into the fabric of the national democratic
agenda. The social, economic and political aspects of discrimination and marginalization
should not be divorced from the role of a particular sector or group in the advancement of the
collective goals of Philippine society as a whole. In other words, marginalized sectors should
be given a say in governance through the party-list system, not simply because they desire to
say something constructive but because they deserve to be heard on account of their
traditionally and historically decisive role in Philippine society.
A Unifying Thread
Fidelity to the Constitution requires commitment to its text. Thus, in the exercise of its function
as official interpreter of the Constitution, the Court should always bear in mind that judicial
prudence means that it is safer to construe the Constitution from what appears upon its
face.17
With regard to the matter of what qualifies as marginalized and underrepresented sectors
under the party-list system, Section 5(2), Article VI of the Constitution mentions "the labor,
peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors
as may be provided by law, except the religious sector." On the other hand, the law speaks of
"labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals."18
Surely, the enumeration of sectors considered as marginalized and underrepresented in the
fundamental law and in the implementing law (RA 7941) cannot be without significance. To
ignore them is to disregard the texts of the Constitution and of RA 7941. For, indeed, the very
first of Ang Bagong Bayani-OFW Labor Party’s eight guidelines for screening party-list
participants is this: the parties, sectors or organizations "must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941."19
For this reason, I submit the majority’s decision is cryptic and wanting when it makes short
shrift of the issue of whether petitioner is a marginalized and underrepresented sector in the
following manner:
The crucial element is not whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the Constitution and RA 7941.
The resolution of petitions for accreditation in the party-list system on a case-to-case basis
not tethered to the enumeration of the Constitution and of RA 7941 invites the exercise of
unbridled discretion. Unless firmly anchored on the fundamental law and the implementing
statute, the party-list system will be a ship floating aimlessly in the ocean of uncertainty,
easily tossed by sudden waves of flux and tipped by shifting winds of change in societal
attitudes towards certain groups. Surely, the Constitution and RA 7941 did not envision such
kind of a system.
Indeed, the significance of the enumeration in Section 5(2), Article VI of the Constitution and
Section 5 of RA 7941 is clearly explained in Ang Bagong Bayani-OFW Labor Party:
"Proportional representation" here does not refer to the number of people in a particular
district, because the party-list election is national in scope. Neither does it allude to numerical
strength in a distressed or oppressed group. Rather, it refers to the representation of the
"marginalized and underrepresented" as exemplified by the enumeration in Section 5 of the
law; namely, "labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals."
However, it is not enough for the candidate to claim representation of the marginalized and
underrepresented, because representation is easy to claim and to feign. The party-list
organization or party must factually and truly represent the marginalized and
underrepresented constituencies mentioned in Section 5. Concurrently, the persons
nominated by the party-list candidate-organization must be "Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and parties."
xxx xxx xxx
The marginalized and underrepresented sectors to be represented under the party-list system
are enumerated in Section 5 of RA 7941, which states:
"SEC. 5. Registration. -- Any organized group of persons may register as a party,
organization or coalition for purposes of the party-list system by filing with the COMELEC not
later than ninety (90) days before the election a petition verified by its president or secretary
stating its desire to participate in the party-list system as a national, regional or sectoral party
or organization or a coalition of such parties or organizations, attaching thereto its
constitution, by-laws, platform or program of government, list of officers, coalition agreement
and other relevant information as the COMELEC may require: Provided, that the sector shall
include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals."
While the enumeration of marginalized and underrepresented sectors is not exclusive, it
demonstrates the clear intent of the law that not all sectors can be represented under the
party-list system. It is a fundamental principle of statutory construction that words employed in
a statute are interpreted in connection with, and their meaning is ascertained by reference to,
the words and the phrases with which they are associated or related. Thus, the meaning of a
term in a statute may be limited, qualified or specialized by those in immediate association. 20
(emphasis and underscoring supplied)
More importantly, in defining the concept of a "sectoral party," Section 3(d) of RA 7941 limits
"marginalized and underrepresented sectors" and expressly refers to the list in Section 5
thereof:
Section 3. Definition of Terms. — x x x
(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and
concerns of their sector, x x x. (emphasis supplied)
Petitioner does not question the constitutionality of Sections 2, 3(d) and 5 of RA 7941. (Its
charges of violation of non-establishment of religion, equal protection, free speech and free
association are all leveled at the assailed resolutions of the Commission on Elections.) Thus,
petitioner admits and accepts that its case must rise or fall based on the aforementioned
provisions of RA 7941.
Following the texts of the Constitution and of RA 7941, and in accordance with established
rules of statutory construction and the Court’s pronouncement in Ang Bagong Bayani-OFW
Labor Party, the meaning of "marginalized sectors" under the party list system is limited and
qualified. Hence, other sectors that may qualify as marginalized and underrepresented should
have a close connection to the sectors mentioned in the Constitution and in the law. In other
words, the marginalized and underrepresented sectors qualified to participate in the party-list
system refer only to the labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, professionals
and other related or similar sectors.
This interpretation is faithful to and deeply rooted in the language of the fundamental law and
of its implementing statute. It is coherent with the mandate of the Constitution that
marginalized sectors qualified to participate in the party-list system but not mentioned in
Section 5(2), Article VI are "such other sectors as may be provided by law" duly enacted
by Congress. It is also consistent with the basic canon of statutory construction, ejusdem
generis, which requires that a general word or phrase that follows an enumeration of
particular and specific words of the same class, the general word or phrase should be
construed to include, or to be restricted to persons, things or cases, akin to, resembling, or of
the same kind or class as those specifically mentioned.21 Moreover, it reins in the subjective
elements of passion and prejudice that accompany discussions of issues with moral or
religious implications as it avoids the need for complex balancing and undue policy-making.
What is the unifying thread that runs through the marginalized and underrepresented sectors
under the party-list system? What are the family resemblances that would characterize
them?22
Based on the language of the Constitution and of RA 7941 and considering the
pronouncements of this Court in Ang Bagong Bayani-OFW Labor Party and BANAT, the
following factors are significant:
(a) they must be among, or closely connected with or similar to, the sectors mentioned in
Section 5 of RA 7941;
(b) they must be sectors whose interests are traditionally and historically regarded as vital to
the national interest but they have long been relegated to the fringes of society and deprived
of an opportunity to participate in the formulation of national policy;
(c) the vinculum that will establish the close connection with or similarity of sectors to those
expressly mentioned in Section 5 of RA 7941 is a constitutional provision specifically
recognizing the special significance of the said sectors (other than people’s organizations,
unless such people’s organizations represent sectors mentioned in Section 5 of RA 7941) 23 to
the advancement of the national interest and
(d) while lacking in well-defined political constituencies, they must have regional or national
presence to ensure that their interests and agenda will be beneficial not only to their
respective sectors but, more importantly, to the nation as a whole.
For Purposes of the Party-List System,
Petitioner is Not a Marginalized Sector
In this case, petitioner asserts that it is entitled to accreditation as a marginalized and
underrepresented sector under the party-list system. However, the Commission on Elections
disagrees.
The majority reverses the Commission on Elections. While it focuses on the contentious
issues of morality, religion, equal protection, and freedom of expression and association, by
granting the petition, the majority effectively rules that petitioner is a qualified marginalized
and underrepresented sector, thereby allowing its accreditation and participation in the party-
list system.
I disagree.
Even assuming that petitioner was able to show that the community of lesbians, gays,
bisexuals and transsexuals (LGBT) is underrepresented, it cannot be properly considered as
marginalized under the party-list system. First, petitioner is not included in the sectors
mentioned in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941. Unless an
overly strained interpretation is resorted to, the LGBT sector cannot establish a close
connection to any of the said sectors. Indeed, petitioner does not even try to show its link to
any of the said sectors. Rather, it represents itself as an altogether distinct sector with its own
peculiar interests and agenda.
Second, petitioner’s interest as a sector, which is basically the legal recognition of its
members’ sexual orientation as a right, cannot be reasonably considered as an interest that is
traditionally and historically considered as vital to national interest. At best, petitioner may cite
an emergent awareness of the implications of sexual orientation on the national human rights
agenda. However, an emergent awareness is but a confirmation of lack of traditional and
historical recognition.24 Moreover, even the majority admits that there is no "clear cut
consensus favorable to gay rights claims."25
Third, petitioner is cut off from the common constitutional thread that runs through the
marginalized and underrepresented sectors under the party-list system. It lacks the vinculum,
a constitutional bond, a provision in the fundamental law that specifically recognizes the
LGBT sector as specially significant to the national interest. This standard, implied in BANAT,
is required to create the necessary link of a particular sector to those sectors expressly
mentioned in Section 5(2), Article VI of the Constitution and Section 5 of RA 7941.
Finally, considering our history and tradition as a people, to consider the promotion of the
LGBT agenda and "gay rights" as a national policy as beneficial to the nation as a whole is
debatable at best. Even the majority (aside from extensively invoking foreign practice and
international conventions rather than Philippine laws) states:
We do not suggest that public opinion, even at its most liberal, reflect a clear cut strong
consensus favorable to gay rights claims….26
This is so unlike the significance of the interests of the sectors in Section 5 of RA 7941 which
are, without doubt, indisputable.
Regardless of the personal beliefs and biases of its individual members, this Court can only
apply and interpret the Constitution and the laws. Its power is not to create policy but to
recognize, review or reverse the policy crafted by the political departments if and when a
proper case is brought before it. Otherwise, it will tread on the dangerous grounds of judicial
legislation.
In this instance, Congress, in the exercise of its authority under Section 5(2), Article VI of the
Constitution, enacted RA 7941. Sections 2, 3(d) and (5) of the said law instituted a policy
when it enumerated certain sectors as qualified marginalized and underrepresented sectors
under the party-list system. Respect for that policy and fidelity to the Court’s duty in our
scheme of government require us to declare that only sectors expressly mentioned or closely
related to those sectors mentioned in Section 5 of RA 7941 are qualified to participate in the
party-list system. That is the tenor of the Court’s rulings in Ang Bagong Bayani-OFW Labor
Party and BANAT. As there is no strong reason for the Court to rule otherwise, stare decisis
compels a similar conclusion in this case.
The Court is called upon to exercise judicial restraint in this case by strictly adhering to, rather
than expanding, legislative policy on the matter of marginalized sectors as expressed in the
enumeration in Section 5 of RA 7941. The Court has no power to amend and expand
Sections 2, 3(d) and 5 of RA 7941 in the guise of interpretation. The Constitution expressly
and exclusively vests the authority to determine "such other [marginalized] sectors" qualified
to participate in the party-list system to Congress. Thus, until and unless Congress amends
the law to include the LGBT and other sectors in the party-list system, deference to Congress’
determination on the matter is proper.
A Final Word
To be succinctly clear about it, I do not say that there is no truth to petitioner’s claim of
discriminatory and oppressive acts against its members. I am in no position to make that
claim. Nor do I claim that petitioner has no right to speak, to assemble or to access our
political departments, particularly the legislature, to promote the interests of its constituency.
Social perceptions of sexual and other moral issues may change over time, and every group
has the right to persuade its fellow citizens that its view of such matters is the best. 27 But
persuading one’s fellow citizens is one thing and insisting on a right to participate in the party-
list system is something else. Considering the facts, the law and jurisprudence, petitioner
cannot properly insist on its entitlement to use the party-list system as a vehicle for advancing
its social and political agenda.
While bigotry, social stereotyping and other forms of discrimination must be given no place in
a truly just, democratic and libertarian society, the party-list system has a well-defined
purpose. The party-list system was not designed as a tool to advocate tolerance and
acceptance of any and all socially misunderstood sectors. Rather, it is a platform for the
realization of the aspirations of marginalized sectors whose interests are, by nature and
history, also the nation’s but which interests have not been sufficiently brought to public
attention because of these sectors’ underrepresentation.
Congress was given by the Constitution full discretion to determine what sectors may qualify
as marginalized and underrepresented. The Court’s task is to respect that legislative
determination by strictly adhering to it. If we effectively and unduly expand such
congressional determination, we will be dabbling in policy-making, an act of political will and
not of judicial judgment.
Accordingly, I respectfully vote to dismiss the petition.
RENATO C. CORONA
Associate Justice
SEPARATE OPINION
ABAD, J.:
I have to concur only in the result set forth in the well-written ponencia of Justice Mariano C.
Del Castillo because I arrived at the same conclusion following a different path.
I also felt that the Court needs, in resolving the issues in this case, to say more about what
the Constitution and Republic Act (R.A.) 7941 intends in the case of the party-list system to
abate the aggravations and confusion caused by the alarming overnight proliferation of
sectoral parties.
The underlying policy of R.A. 7941 or The Party-List System Act is to give the marginalized
and underrepresented sectors of society an opportunity to take a direct part in enacting the
laws of the land. In Ang Bagong Bayani-OFW Labor Party v. Commission on Elections
(COMELEC),1 the Court laid down guidelines for accreditation, but these seem to leave the
COMELEC like everyone else even more perplexed and dumbfounded about what
organizations, clubs, or associations can pass for sectoral parties with a right to claim a seat
in the House of Representatives. The Court can, in adjudicating this case, unravel some of
the difficulties.
Here, I fully agree that the COMELEC erred when it denied Ang Ladlad’s petition for sectoral
party accreditation on religious and moral grounds. The COMELEC has never applied these
tests on regular candidates for Congress. There is no reason for it to apply them on Ang
Ladlad. But the ponencia already amply and lucidly discussed this point.
What I am more concerned about is COMELEC’s claim in its comment on the petition that the
Ang Ladlad sectoral party was not marginalized and underrepresented since it is not among,
or even associated with, the sectors specified in the Constitution and in R.A. 7941.2 Ang
Ladlad, it claims, did not qualify as a marginalized and underrepresented group of people like
those representing labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers, and professionals. This is
effectively the COMELEC’s frame of mind in adjudicating applications for accreditation.
But, the COMELEC’s proposition imposes an unwarranted restriction which is inconsistent
with the purpose and spirit of the Constitution and the law. A reading of Ang Bagong Bayani
will show that, based on the Court’s reading, neither the Constitution nor R.A. 7941 intends
the excessively limited coverage that the COMELEC now suggests. In fact, the Court said in
that case that the list in R.A. 7941 is not exclusive. Thus, while the party-list system is not
meant for all sectors of society, it was envisioned as a social justice tool for the marginalized
and underrepresented in general.
As it happened, the only clue that the Constitution provides respecting the identity of the
sectors that will make up the party-list system is found in the examples it gives, namely, the
labor, the peasant, the urban poor, the indigenous cultural minorities, the women, and the
youth segments of society. Section 5(2), Article VI of the 1987 Constitution provides:
(2) The party-list representative shall constitute twenty per centum of the total number
of representatives including those under the party list. For three consecutive terms
after the ratification of this Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or election from the
labor, peasant, urban poor, indigenous cultural communities, women, youth, and such
other sectors as may be provided by law, except the religious sector." (Underscoring
supplied.)
Getting its bearing from the examples given above, the Congress provided in Section 2 of
R.A. 7941 a broad standard for screening and identifying those who may qualify for the party-
list system. Thus:
Sec. 2. Declaration of policy. The State shall promote proportional representation in
the election of representatives to the House of Representatives through a party-list
system of registered regional and sectoral parties or organizations or coalitions
thereof, which will enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, and who lack well defined
political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of
the House of Representatives. Towards this end, the State shall develop and guarantee
a full, free and open party system or group interests in the House of Representatives
by enhancing their chances to compete for and win seats in the legislature, and shall
provide the simplest scheme possible. (Underscoring supplied.)
The above speaks of "marginalized and underrepresented sectoral parties or organizations x
x x lack well defined political constituencies x x x who could contribute to the formulation and
enactment of appropriate legislation." But, as the Court said in Ang Bagong Bayani, the whole
thing boils down to ascertaining whether the party seeking accreditation belongs to the
"marginalized and underrepresented."3
Unfortunately, Congress did not provide a definition of the term "marginalized and
underrepresented." Nor did the Court dare provide one in its decision in Ang Bagong Bayani.
It is possible, however, to get a sense of what Congress intended in adopting such term. No
doubt, Congress crafted that term—marginalized and underrepresented—from its reading of
the concrete examples that the Constitution itself gives of groupings that are entitled to
accreditation. These examples are the labor, the peasant, the urban poor, the indigenous
cultural minorities, the women, and the youth sectors. Fortunately, quite often ideas are best
described by examples of what they are, which was what those who drafted the 1987
Constitution did, rather than by an abstract description of them.
For Congress it was much like looking at a gathering of "a dog, a cat, a horse, an elephant,
and a tiger" and concluding that it is a gathering of "animals." Here, it looked at the samples
of qualified groups (labor, peasant, urban poor, indigenous cultural minorities, women, and
youth) and found a common thread that passes through them all. Congress concluded that
these groups belonged to the "marginalized and underrepresented."
So what is the meaning of the term "marginalized and underrepresented?" The examples
given (labor, peasant, urban poor, indigenous cultural minorities, women, and youth) should
be the starting point in any search for definition. Congress has added six others to this list:
the fisherfolk, the elderly, the handicapped, the veterans, the overseas workers, and the
professionals.4 Thus, the pertinent portion of Section 5 of R.A. 7941 provides:
Sec. 5. Registration. – x x x Provided, that the sector shall include labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals.
If one were to analyze these Constitutional and statutory examples of qualified parties, it
should be evident that they represent the working class (labor, peasant, fisherfolk, overseas
workers), the service class (professionals), the economically deprived (urban poor), the
social outcasts (indigenous cultural minorities), the vulnerable (women, youth) and the
work impaired (elderly, handicapped, veterans). This analysis provides some understanding
of who, in the eyes of Congress, are marginalized and underrepresented.
The parties of the marginalized and underrepresented should be more than just lobby or
interest groups. They must have an authentic identity that goes beyond mere similarities in
background or circumstances. It is not enough that their members belong to the same
industry, speak the same dialect, have a common hobby or sport, or wish to promote public
support for their mutual interests. The group should be characterized by a shared advocacy
for genuine issues affecting basic human rights as these apply to their groups. This is in
keeping with the statutory objective of sharing with them seats in the House of
Representatives so they can take part in enacting beneficial legislation.
It should be borne in mind, however, that both the Constitution and R.A. 7941 merely provide
by examples a sense of what the qualified organizations should look like. As the Court
acknowledged in Ang Bagong Bayani, these examples are not exclusive. For instance, there
are groups which are pushed to the margin because they advocate an extremist political
ideology, such as the extreme right and the extreme left of the political divide. They may be
regarded, if the evidence warrants, as qualified sectors.
Further, to qualify, a party applying for accreditation must represent a narrow rather than a
specific definition of the class of people they seek to represent. For example, the Constitution
uses the term "labor," a narrower definition than the broad and more abstract term, "working
class," without slipping down to the more specific and concrete definition like "carpenters,"
"security guards," "microchips factory workers," "barbers," "tricycle drivers," and similar sub-
groupings in the "labor" group. See the other illustrations below.
Broad *Narrow Specifically Defined Groups
Definition Definition
Working Class Labor Carpenters, security guards, microchip
factory workers, barbers, tricycle drivers
Economically Urban Informal settlers, the jobless, persons displaced by domestic wa
Deprived Poor
The Vulnerable Women Working women, battered women,
victims of slavery
Work Impaired Handi- Deaf and dumb, the blind, people on wheelchairs
Capped
*The definition that the Constitution and R.A. 7941 use by their examples.
Obviously, the level of representation desired by both the Constitution and R.A. 7941 for the
party-list system is the second, the narrow definition of the sector that the law regards as
"marginalized and underrepresented." The implication of this is that, if any of the sub-
groupings (the carpenters, the security guards, the microchips factory workers, the barbers,
the tricycle drivers in the example) within the sector desires to apply for accreditation as a
party-list group, it must compete with other sub-groups for the seat allotted to the "labor
sector" in the House of Representatives. This is the apparent intent of the Constitution and
the law.
An interpretation that will allow concretely or specifically defined groups to seek election as a
separate party-list sector by itself will result in riot and redundancy in the mix of sectoral
parties grabbing seats in the House of Representatives. It will defeat altogether the objectives
of the party-list system. If they can muster enough votes, the country may have a party-list of
pedicab drivers and another of tricycle drivers. There will be an irrational apportionment of
party-list seats in the legislature.
In addition, Section 5 of R.A. 7941 provides that parties interested in taking part in the party-
list system must state if they are to be considered as national, regional, or sectoral parties.
Thus:
Sec. 5. Registration. – Any organized group of persons may register as a party,
organization or coalition for purposes of the party-list system by filing with the
COMELEC not later than ninety (90) days before the election a petition verified by its
president or secretary stating its desire to participate in the party-list system as a
national, regional or sectoral party or organization or a coalition of such parties or
organizations, x x x.
This provision, taken alongside with the territorial character of the sample sectors provided by
the Constitution and R.A. 7941, indicates that every sectoral party-list applicant must have an
inherently regional presence (indigenous cultural minorities) or a national presence (all the
rest).
The people they represent are not bound up by the territorial borders of provinces, cities, or
municipalities. A sectoral group representing the sugar plantation workers of Negros
Occidental, for example, will not qualify because it does not represent the inherently national
character of the labor sector.
Finally, as the Court held in Ang Bagong Bayani, it is not enough for a party to claim that it
represents the marginalized and underrepresented. That is easy to do. The party must
factually and truly represent the marginalized and underrepresented. It must present to the
COMELEC clear and convincing evidence of its history, authenticity, advocacy, and
magnitude of presence. The COMELEC must reject those who put up building props
overnight as in the movies to create an illusion of sectoral presence so they can get through
the door of Congress without running for a seat in a regular legislative district.
In sum, to qualify for accreditation:
One, the applying party must show that it represents the "marginalized and
underrepresented," exemplified by the working class, the service class, the economically
deprived, the social outcasts, the vulnerable, the work impaired, or some such similar class of
persons.
Two, the applying party should be characterized by a shared advocacy for genuine issues
affecting basic human rights as these apply to the sector it represents.
Three, the applying party must share the cause of their sector, narrowly defined as shown
above. If such party is a sub-group within that sector, it must compete with other sub-groups
for the seat allocated to their sector.
Four, the members of the party seeking accreditation must have an inherent regional or
national presence.
And five, except for matters the COMELEC can take judicial notice of, the party applying for
accreditation must prove its claims by clear and convincing evidence.
In this case, Ang Ladlad represents men and women who identify themselves as lesbians,
gays, bisexuals, or trans-gendered persons (LGBTs). Applying the universally accepted
estimate that one out of every 10 persons is an LGBT of a certain kind,5 the Filipino LGBTs
should now stand at about 8.7 million. Despite this, however, they are by and large, subtly if
not brutally, excluded from the mainstream, discriminated against, and persecuted. That the
COMELEC denied Ang Ladlad’s petition on religious and moral grounds is proof of this
discrimination.
Ang Ladlad claims that many cases of intolerance and violence against LGBTs have been
documented. At home, effeminate or gay youths are subjected to physical abuse by parents
or guardians to make them conform to standard gender norms of behavior, while lesbian
youths are raped to cure them of their perceived affliction. LGBTs are refused admission from
certain schools, or are suspended and put on probation. Meanwhile, in the workplace, they
are denied promotions or benefits which are otherwise available to heterosexuals holding the
same positions. There is bigotry for their group.
Ang Ladlad has amply proved that it meets the requirements for sectoral party accreditation.
Their members are in the vulnerable class like the women and the youth. Ang Ladlad
represents a narrow definition of its class (LGBTs) rather than a concrete and specific
definition of a sub-group within the class (group of gay beauticians, for example). The people
that Ang Ladlad seeks to represent have a national presence.
The lesbians, gays, bisexuals, and trans-gendered persons in our communities are our
brothers, sisters, friends, or colleagues who have suffered in silence all these years. True, the
party-list system is not necessarily a tool for advocating tolerance or acceptance of their
practices or beliefs. But it does promise them, as a marginalized and underrepresented
group, the chance to have a direct involvement in crafting legislations that impact on their
lives and existence. It is an opportunity for true and effective representation which is the very
essence of our party-list system.
For the above reasons, I vote to GRANT the petition.
ROBERTO A. ABAD
Associate Justice