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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 99031 October 15, 1991

RODOLFO D. LLAMAS, petitioner,


vs.
EXECUTIVE SECRETARY OSCAR ORBOS and MARIANO UN OCAMPO III, respondents.

Mauricio Law Office for petitioner.

Ongkiko, Bucoy, Dizon & Associates for private respondent.

PARAS, J.:

The case before Us calls for a determination of whether or not the President of the Philippines has the power to grant
executive clemency in administrative cases. In connection therewith, two important questions are also put in issue,
namely, whether or not the grant of executive clemency and the reason therefore, are political questions beyond
judicial review, and whether or not the questioned act was characterized by grave abuse of discretion amounting to
lack of jurisdiction.

Petitioner Rodolfo D. Llamas is the incumbent Vice-Governor of the Province of Tarlac and, on March 1, 1991 he
assumed, by virtue of a decision of the Office of the President, the governorship (p. 1, Petition). Private respondent
Mariano Un Ocampo III is the incumbent Governor of the Province of Tarlac and was suspended from office for a
period of 90 days. Public respondent Oscar Orbos was the Executive Secretary at the time of the filing of this petition
and is being impleaded herein in that official capacity for having issued, by authority of the President, the assailed
Resolution granting executive clemency to respondent governor.

Sometime in 1989, petiotioner, together with Tarlac Board Members Marcelino Aganon, Jr. and Arnaldo P. Dizon, filed
on June 13, 1989 a verified complaint dated June 7, 1989 against respondent governor before the then Department
of Local Government (DLG, for short), charging him with alleged violation of Section 203(2) (f) 203(2) (p), and 208(w),
of Batas Pambansa (B.P.) Blg. 337, otherwise known as the Local Government Code, and other appropriate laws,
among them, the Anti-Graft and Corrupt Practices ACt. Prior to that, petitoner filed with the Office of the Omdusman
a verified complainant dated November 10, 1988 against respondent governor for the latter's alleged viloation of
Section 3-G of Republic Act. (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

The complaint before the DLG, docketed as Administrative Case 10459, was subsequently tried, where both petitioner
and respondent govemor presented their respective evidence.

Petitioner maintains that sometime in August, 1988, respondent governor, in his official capacity as Provincial
Governor Tarlac, entered into and executed a Loan Agreement with Lingkod Tarlac Foundation, Inc., a non-stock and
non-profit organization headed by the governor himself as chairman and controlled by his brother-in-law as executive
director, trustee, and secretary; that the said Loan Agreement was never authorized and approved by the Provincial
Board, in direct contravention of the provisions of the Local Government Code; that the said Agreement is wholly one-
sided in favor of the Foundation and grossly inimical to the interest of the Provincial Government (because it did not
provide for interest or for any type security and it did not provide for suretyship and comptrollership or audit to control
the safe disbursement of said loan); that a total amount of P20,000,000.00 was disbursed to the aforesaid Foundation;

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that the transactions constitute a fraudulent scheme to defraud the Provincial Government; and that the said
Agreement is wholly unconstitutional, illegal, a immoral. (Annex "A", Petition)

On the other hand, it is the contention of respondent governor that "the funds were intended to generate livelihood
project among the residents of Tarlac and the use of the Lingkod Tarlac Foundation, Inc. was authorized by law and
considered the best alternative as a matter of judgment." (pp. 12-13, Appeal Memorandom); that he resigned from the
said Foundation in order to forestall any suspicion that he would influence it; that it is not true that the Loan Agreement
did not provide for continuing audit by the Provincial Government because the Memorandum of Agreement provides
otherwise; and that the Agreement is not manifestly and grossly disadvantageous to the Provincial Government and
respondent governor did not and would not profit thereby because it provided sufficient safeguards for repayment.
(Annex "A", Petition)

After trial, the Secretary of the then Department of Local Government rendered a decision dated September 21, 1990,
dispositive portion of which reads:

WHEREFORE, Governor Mariano Un Ocampo III is, as he hereby found guilty of having violated Section 3(g)
of Republic Act No.3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which act amounts to
serious neglect of duty and/or abuse of authority, for which tilp penalty of suspension from office for a period
of ninety (90) days, effective upon the finality of this Decision, is hereby imposed upon him. (p. 3, Petition)

Parenthetically, be it noted that the Resolution imposed not a preventive suspension but a penalty of suspension.

Respondent govemor moved for a reconsideration of the abovequoted decision but the same was denied on October
19, 1990. Aggrieved, he appealed the DLG decision dated September 21, 1990 and the order of denial dated October
19, 1990 to the Office of the President (O.P. Case No. 4480).

On February 26, 1991, herein public respondent Executive Secretary issued a Resolution dismissing respondent
governor's appeal and affirming the September 21, 1990 DLG decision.

Subsequently, and pursuant to Sec. 66, Chapter 4 of B.P. Blg. 337, to the effect that the decision of the Office of the
President in administrative suspension of local officials shall be immediately executory without prejudice to appeal to
appropriate courts, petitioner, on March 1, 1991, took his oath of office as acting governor. Under the administrative
suspension order, petitioner had up to May 31, 1991 as acting governor. On the same date (March 1, 1991),
respondent govemor moved for a reconsideration of the Executive Secretary's Resolution, to which petitioner filed an
opposition. From the allegations of the petitioner in his petition, respondent govemor accepted his suspension and
turned over his office to petitioner.

To the surprise of petitioner, however, respondent govemor on March 19, 1991, issued an "administrative order" dated
March 8, 1991, in which the latter signified his intention to "(continue, as I am bound to exercise my fimctions as
govemor and shall hold office at my residence," in the belief that "the pendency of my Motion for Reconsideration
precludes the coming into finality as executory the DLG decision." (Annex "E", Petition; p. 10, Comment). And, as
categorically stated in the petition, the reassumption ceremony by respondent governor was held on May 21, 1991 (p.
8, Petition).

Without ruling on respondent governor's Motion for Reconsideration, public respondent issued a Resolution dated
May 15, 1991, in O.P. Case No. 4480, which reads:

This refers to the petition of Gov. Mariano Un Ocampo III of Tarlac for executive clemency, interposed in
connection with the decision of the Secretary of then Department of Local Governmen (DLG) dated 21
September 1990, as affirmed in a Resolution of this Office dated 26 February 1991, suspending petitioner
from office for period of ninety (90) days upon the finality of said decision.

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As will be recalled, the DLG Secretary imposed the penalty of suspension upon his finding that petitioner was
guilty of serious neglect of duty and/or abuse of authority for entering into a loan contract with the Lingkod
Tarlac Foundation, Inc. (LTFI) grossly/manifestly disadvantageous to Tarlac Province. In his letter-petition
of 10 May 1991, thereby pleading for a thirty (30)-day reduction of his suspension, petitioner invited attention
to the DLG Secretary's decision clearing him of having personally benefitted from the questioned transaction.
In the same letter, petitioner manifests serving more than sixty (60) days of the ninety-day suspension.
Previously, petitioner submitted documents and letters from his constituents tending to show the relative
success of his livelihood loan program pursue under the aegis of the LTFI and/or the Foundation's credible
loan repayment record. To cite some:

1. Certification of the Chairman,Tarlac Integrated Livelihood Cooperative, Inc., attesting to the full payment of
its loan (P15.05 M) plus interest with LTFI;

2. Certification of the Manager, Rural Bank of Geron (Tarlac), Inc., attesting to the gradual liquidation of the
loan granted to family-borrowers out of funds provided by LTFI;

3. Letter of Jover's Phil., expressing gratitude for the loan assistance extended for its export activities by LTFI;

4. Letter of the Tarlac Provincial Agricultural Officer i forming that the proceeds of the loan from LTFI have
bee utilized in hybrid com production; and

5. Letter of the President of the Federation of Tobacco Leaf Producers of Tarlac, Inc., informing of the payment
of 76 of the amount (P203,966.00) loaned to the Federation for tobacco production.

Petitioner's act, vis-a-vis the loan to LTFI, may have been promp by an over eagerness to accelerate the
delivery of livelihood services to his provincemates. As the truism goes, however, the end does not always
justify the means. Be that as it may, but without belaboring the propriety of the loan agreement
aforementioned, some measure of leniency may be accorded petitioner as the purpose of his suspen sion
may have made its mark.

WHEREFORE, Governor Mariano Un Ocampo III is hereby granted executive clemency in the sense that his
ninety-day suspension is hereby reduced to the period already served.

SO ORDERED.

(Annex "F", Petition; pp. 25-26, Rollo)

By virtue of the aforequoted Resolution, respondent governor reassumed the governorship of the province, allegedly
withou any notification made to the petitioner.

Petitioner posits that the issuance by public respondent of the May 15, 1991 Resolution was "whimsical, capricious
and despotic, and constituted grave abuse of discretion amounting lack of jurisdiction," (p. 6, petition) basically on the
ground th executive clemency could be granted by the President only in criminal cases as there is nothing in the
statute books or even in the Constitution which allows the grant thereof in administrative cases. Petitioner also
contends that since respondent governor refused to recognize his suspension (having reassumed the governorship
in gross defiance of the suspension order), executive clemency cannot apply to him; that his rights to due process
were violated because the grant of executive clemency was so sudden that he was not even notified thereof; and that
despite a finding by public respondent of impropriety in the loan transaction entered into by respondent governor, the
former failed to justify the reduction of the penalty of suspension on the latter. Petitioner further alleges that the
exftutive clemency granted by public respondent was "the product of a hocus-pocus strategy" (p. 1, Manifestation with
Motion, etc.) because there was allegedly no real petition for the grant of executive clemency filed by respondent
govemor.

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Batas Pambansa Blg. 337 provides:

Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the Minister of Local
Government if the respondent is a provincial or city official, ...

(2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable
ground to believe that the respondent has committed the act or acts complained of, when the evidence of
culpability is strong, when the gravity of the offense s warrants, or when the continuance in office of the
respondent coul influence the witnesses or pose a threat to the safety and integrity the records and other
evidence. In all cases, preventive suspension shall not extend beyond sixty days after the start of said
suspension.

(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice
to the continuation the proceedings against him until its termination. (Emphasis supplied)

It is admitted by petitioner that since March 1, 1991, he has assumed the governorship. A portion of the petition is
hereon der quoted as follows:

7. [On February 28, 1991], and in accordance with the provisions of the Local Government Code (Sec. 66,
Chapter 4, Batas Pambansa Blg. 337), to the effect that the decision of the Office of the President in an
administrative suspension of local officials shall be immediately executory without prejudice to appeal to
appropriate courts, Petitioner Llamas took his oath of office as acting govemor. Under the administrative
suspension order, Llamas had up to May 31 [sic 29] 1991 as acting governor;

8. A copy of this oath of office is attached and made a part hereof as Annex B;

9. Significantly, this oath of office was sworn to by Petitioner Llamas before Secretary Santos of the newly
created Department Interior and Local Government, as shown by the lower portion Annex B, and by a picture
of the oathtaking itself, attached and mad a part hereof as Annex B-1;

10. Subsequently, Petitioner Llamas and Respondent Ocampo met, where Ocampo was shown Llamas' oath
of office. During meeting, held in the presence of all department heads at the provi cial capitol and in the
presence of various local government offici and representatives of the media, Ocampo agreed to turn over
reigns of the provincial government to Petitioner;

11. In fact, Ocampo had asked the department heads and all other officials of the provincial government of
Tarlac to extend their cooperation to Llamas, during the ninety days that the latter would assume the
governorship;

12. And, as if this was not enough, Ocampo even made announcements in the media that he was allowing
Petitioner Llamas to perform his functions as acting governor at the Office of the Govern at the Capitol where
he (Ocampo) used to hold office (true enough Ocampo has subsequently allowed Llamas to hold office at the
of the Governor, with Ocampo even escorting the acting therein last March 4, 1991);

l 3. An account of Ocampo's acceptance of his suspension and of his having turned over his office to Petitioner
Llamas was published, front page, in the March 5, 1991 issue of the Manila Bulletin. A copy of this news
account is attached and made a part hereof as Annex C);

14. Furthermore, various other officials, President Aquino Rep. Jose Cojuangco included, have extended
recognition to Petitions Llamas' assumption of the governorship. Llamas met with President Aquino and Rep.
Cojuangco and, during this meeting, the two highest officials of the land have asked Llamas to discharge his
duties acting governor;

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15. Secretary Santos, for that matter, has issued a designation to Tarlac Senior Board Member Aganon, dated
March 18, 1991, a pointing bim as acting vice governor of the province, "in view of the suspension of Gov.
Mariano Un Ocampo III, and the assumption Vice Governor Rodolfo Llamas as acting governor." A copy of
this designation is attached and made a part hereof as Annex D;

xxx xxx xxx

30. ... [T]he reassumption ceremony by [Governor] Ocampo was held [in the] morning of May 21, 1991 ... (pp-
2-4 & 7, Petition; pp. 3-5 & 8, Rollo)

It is prayed in the instant petition dated May 21, 1991 that:

b. In the meantime that this action is pending, and irnmediately upon the filing hereof, a temporary restraining
order be issued stopping the Respondents from enforcing, in any manner, the aforesaid contested resolution,
and Respondent Ocampo, firom continuing with his reassumption of the governorship. IN THE
ALTERNATIVE, that a cease and desist order be issued against Respondent Ocampo stopping him from
continuing with hiii reassumption of the governorship.

Let us first deal with the issue on jurisdiction. Respondent govemor avers that since under the Constitution fiffl
discretionary authority is granted to the President on the exercise of executive clemency, the same constitutes a
political question which is beyond judicial review.

Such a rule does not hold true in the case at bar. While it is true that courts cannot inquire into the manner in which
the President's discretionary powers are exercised or into the wisdom for its exercise, it is also a settled rule that when
the issue involved concerns the validity of such discretionary powers or whether said powers are within the limits
prescribed by the Constitution, We will not decline to exercise our power of judicial review. And such review does not
constitute a modification or correction of the act of the President, nor does it constitute interference with the functions
of the President. In this connection, the case of Tanada and Macapagal vs. Cuenco, et al., 103 Phil. 1051, is very
enlightening, and We quote:

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 Consfitution 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. (Willoughby on the Constitution
of the United States, Vol. 3, p. 1326).

xxx xxx xxx

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 goverrunent, with discretionary power to act. See State vs.
Cunningham, 81 Wis. 497, 51 L.R.A. 561; In Re Gunn, 50 Fan. 155; 32 Pac. 470, 948, 19 L. RA. 519; Green
vs. Mills, 69 Fed. 852, 16, C. CA 516, 30 L.R.A- 90; Fletcher vs. Tuttle, 151 111, 41, 37 N.E. 683, 25 L.R.A.
143, 42 Am. St. Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law or
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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 Constitute 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 the department which is charged with the special duty
of determinining 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.

Besides, under the 1987 Constitution, the Supreme Court has been conferred an "expanded jurisdiction" to review
the decisions of the other branches and agencies of the government to determine whether or not they have acted
within the bounds of the Constitution (See Art. VIII, Sec. 1, Constitution). "Yet, in the exercise thereof, the Court is to
merely check whether or not the govermental branch or agency has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view" (Co vs. Electoral Tribunal of the House of Representatives & Ong,
G.R. Nos. 92191-92 and Balanquit vs. Electoral Tribunal of the House of Representatives & Ong, G.R Nos. 92202-
03, July 30, 1991).

In the case at bar, the nature of the question for determination is not purely political. Here, we are called upon to
decide whether under the Constitution the President may grant executive clemency in administrative cases. We must
not overlook the fact that the exercise by the President of her power of executive clemency is subject to constitutional
l'um'tations. We will merely check whether the particular measure in question has been in accordance with law. In so
doing, We will not concern ourselves with the reasons or motives which actuate the President as such is clearly
beyond our power of judicial review.

Petitioner's main argument is that the President may grant executive clemency only in criminal cases, based on Article
VII, Section 19 of the Constitution which reads:

Sec. 19. Except in cases of impeachment, or as otherwise pro vided in this Constitution, the President may
grant reprieves, commu tations, and pardons, and remit fines and forfeitures, after conviction by final
judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the
Congress. (Emphasis supplied)

According to the petitioner, the qualifying phrase "after conviction by final judgment" applies solely to criminal cases,
and no other law allows the grant of executive clemency or pardon to anyone who has been "convicted in an
administrative case," allegedly because the word "conviction" refers only to criminal cases (par. 22-b, c, d, Petition).
Petitioner, however, describes in his very own words, respondent governor as one who has been "convicted in an
administrative case" (par. 22-a, petition). Thus, petitioner concedes that the word "conviction" may be used either in
a criminal case or in an administrative case. In Layno, Sr. vs. Sandiganbayan, 136 SCRA 536, We ruled:

For misfeasance or malfeasance ... any [elective official] could ... be proceeded against administratively or ...
criminally. In either case, his culpability must be established ...

It is also important to note that respondent govemor's Motion for Reconsideration filed on March 1, 1991 was
withdrawn in his petition for the grant of executive clemency, which fact rendered the Resolution dated February 26,
1991 affirming the DLG Decision (which found respondent governor guilty of neglect of duty and/or abuse of authority
and which suspended him for ninety (90) days) final.

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Moreover, applying the doctrine "Ubi lex non distinguit, nec nos distinguire debemos," We cannot sustain petitioner's
view. In other words, if the law does not distinguish, so We must no distinguish. The Constitution does not distinguish
between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment
cases. By the same token, if executive clemency may be exercised only in criminal cases, it would indeed be
unnecessary to provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the
Constitution. Following petitioner's proposed interpretation, cases of impeachment are automatically excluded
inasmuch as the same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing reason why the President cannot grant executive
clemency in administrative cases. It is Our considered view that if the President can grant reprieves, commutations
and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive
clemency in administrative cases, which are clearly less serious than criminal offenses.

A number of laws impliedly or expressly recognize or support the exercise of the executive clemency in administrative
cases.

Under Sec. 43 of P.D. 807, "In meritorious cases, ..., the President may commute or remove administrative penalties
or disabilities issued upon officers and employees, in disciplinary cases, subject to such terms and conditions as he
may impose in the interest of the service."

During the deliberations of the Constitutional Commission, a subject of deliberations was the proposed amendment
to Art. VII, Sec. 19 which reads as follows: "However, the power to grant executive clemency for violation of corrupt
practices laws may be limited by legislation."The Constitutional Commission, however, voted to remove the
amendment, since it was in derogation of the powers of the President. As Mr. Natividad stated:

I am also against this provision which will again chip more powers from the President. In case of other criminals
convicted in our society we extend probation to them while in this case, they have already been convicted and
we offer mercy. The only way we can offer mercy to them is through this executive clemency extended to them
by the President. If we still close this avenue to them, they would be prejudiced even worse than the murderers
and the more vicious killers in our society ....

The proposal was primarily intended to prevent the President from protecting his cronies. Manifestly, however, the
Commission preferred to trust in the discretion of Presidents and refrained from putting additional limitations on his
clemency powers. (II RECORD of the Constitutional Commission, 392, 418-419, 524-525)

It is evident from the intent of the Constitutional Commission, therefore, that the President's executive clemency
powers may not be limited in terms of coverage, except as already provided in the Constitution, that is, "no pardon,
amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations shall be granted by
the President without the favorable recommendation of the COMELEC" (Article IX, C, Section 5, Constitution). If those
already adjudged guilty criminally in court may be pardoned, those adjudged guilty administratively should likewise
be extended the same benefit.

In criminal cases, the quantum of evidence required to convict an individual is proof beyond reasonable doubt, but the
Constitution grants to the President the power to pardon the act done by the proved criminal and in the process
exempts him from punishment therefor. On the other hand, in administrative cases, the quantum of evidence required
is mere substantial evidence to support a decision, not to mention that as to the admissibility of evidence,
administrative bodies are not bound by the technical and rigid rules of admissibility prescribed in criminal cases. It will
therefore be unjust and unfair for those found guilty administratively of some charge if the same effects of pardon or
executive clemency cannot be extended to them, even in the sense of modifying a decision to subserve the interest
of the public. (p. 34, Comment of public respondent)

Of equal importance are the following provisions of Executive Order No. 292, otherwise known as the Administrative
Code of 1987, Section I, Book III of which provides:
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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.

SECTION 38. Definition of Administrative Relationships. Unless otherwise expressly stated in the Code or
in other laws defining the special relationships of particular agencies, administrative relationships shall be
categorized and defined as follows:

(1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of
acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the
execution of plans and programs. Unless a different meaning is explicitly provided in the specific law governing the
relationship of particular agencies the word "control" shall encompass supervision and control as defined in this
paragraph. ... (emphasis supplied)

The disciplinary authority to investigate, suspend, and remove provincial or city officials devolves at the first instance
on the Department of Interior and Local Government (Secs. 61 and 65, B.P. Blg. 337) and ultimately on the President
(Sec. 66). Implicit in this authority, however, is the "supervision and control" power of the President to reduce, if
circumstances so warrant, the imposable penalty or to modify the suspension or removal order, even "in the sense"
of granting executive clemency. "Control," within the meaning of the Constitution, is the power to substitute one's own
judgment for that of a subordinate. Under the doctrine of Qualified Political Agency, the different executive
departments are mere adjuncts of the President. Their acts are presumptively the acts of the President until
countermanded or reprobated by her (Vinena v. Secretary, 67 Phil. 451; Free Telephone Workers Union vs. Minister
of Labor and Employment, 108 SCRA 767 [1981]). Replying upon this view, it is urged by the Solicitor General that in
the present case, the President, in the exercise of her power of supervision and control over all executive departments,
may substitute her decision for that of her subordinate, most especially where the basis therefor would be to serve
the greater public interest. It is clearly within the power of the President not only to grant "executive clemency" but
also to reverse or modify a ruling issued by a subordinate against an erring public official, where a reconsideration of
the facts alleged would support the same. It is in this sense that the alleged executive clemency was granted, after
adducing reasons that subserve the public interest. "the relative success of . . . livelihood loan program." (pp. 39-
40, Comment of public respondent)

We wish to stress however that when we say the President can grant executive clemency in administrative cases, We
refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative branches of the
government.

Noteworthy is the fact that on March 1, 1991, respondent governor filed a motion for reconsideration and the same
may be regarded as implicitly resolved, not only because of its withdrawal but also because of the executive clemency
which in effect reduced the penalty, conformably with the power of "control."

On petitioner's argument that private respondent's motion for reconsideration has abated the running of the
reglementary period for finality of judgment in O.P. Case No. 4480 (that is, there being no final judgment to speak of,
the pardon granted was premature and of no effect, We reiterate the doctrine that upon acceptance of a presidential
pardon, the grantee is deemed to have waived any appeal which he may have filed. Thus, it was held that:

The commutation of the penalty is impressed with legal significance. That is an exercise of executive clemency
embraced in the pardoning power. According to the Constitution: "The President may except in cases of
impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and, with the
concurrence of the Batasang Pambansa, grant amnesty. "Once granted, it is binding and effective. It serves
to put an end to this appeal." (Mansanto v. Factoran, Jr., G.R. No. 78239, 170 SCRA 190. 196). (See also
Peo v. Crisola, 129 SCRA 13)

Consequently, respondent governor's acceptance of the presidential pardon "serves to put an end" to the motion for
reconsideration and renders the subject decision final, that of the period already served.

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Finally, petitioner's argument that his constitutional rights to due process were violated is uruneritorious. Pardon has
been defined as "the private, though official, act of the executive magistrate, delivered to the individual for whose
benefit it is intended and not communicated officially to the court. ..." (Bernas, The Constitution of the Philippines, Vol.
II, First Ed. 1988, pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]). Thus, assuming that petitioner was not
notified of the subject pardon, it is only because said notice is unnecessary. Besides, petitioner's claim that respondent
governor has not begun serve sentence is belied by his very own factual allegations in his petition, more particularly
that he served as Acting Governor of Tarlac effective from the date he took his Oath of Office on February 28, 1991
up to the time respondent govemor reassumed the governorship of Tarlac on May 21, 1991 (par. 30 petition). It is,
therefore, error to say that private respondent did not serve any portion of the 90-day suspension meted upon him.

We fail to see any grave abuse of discretion amounting to lack or in excess of jurisdiction committed by public
respondent.

WHEREFORE, judgment is hereby rendered: (1) DECLARING that the President did not act arbitrarily or with abuse,
much less grave abuse of discretion in issuing the May 15, 1991 Resolution granting on the grounds mentioned
therein, executive clemency to respondent governor and that, accordingly, the same is not unconstitutional (without
prejudice to criminal proceedings which have been filed or may be filed against respondent governor), and (2)
DENYING the rest of the prayers in the petition for being unmeritorious, moot and academic. No costs.

SO ORDERED.

Fernan, C.J., Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Melencio-Herrera, J., is on leave.

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Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 76872 July 23, 1987

WILFREDO TORRES Y SUMULONG, petitioner,


vs.
HON. NEPTALI A. GONZALES, THE CHAIRMAN, BOARD OF PARDONS AND PAROLE, and THE DIRECTOR,
BUREAU OF PRISONS, respondents.

FELICIANO, J.:

This is an original petition for habeas corpus filed on behalf of petitioner Wilfredo S. Torres, presently confined at the
National Penitentiary in Muntinlupa. We issued the writ and during the hearing and from the return filed by the
respondents through the Solicitor General, and other pleadings in this case, the following facts emerged:

1. Sometime before 1979 (no more specific date appears in the records before this Court), petitioner was
convicted by the Court of First Instance of Manila of the crime of estafa (two counts) and was sentenced to an
aggregate prison term of from eleven (11) years, ten (10) months and twenty-two (22) days to thirty-eight (38)
years, nine (9) months and one (1) day, and to pay an indemnity of P127,728.75 (Criminal Cases Nos. 68810,
91041 and F-138107). These convictions were affirmed by the Court of Appeals (CA-G.R. Nos. 14773-CR
and 17694-CR). The maximum sentence would expire on 2 November 2000.1

2. On 18 April 1979, a conditional pardon was granted to the petitioner by the President of the Philippines on
condition that petitioner would "not again violate any of the penal laws of the Philippines. Should this condition
be violated, he will be proceeded against in the manner prescribed by law."2 Petitioner accepted the conditional
pardon and was consequently released from confinement.

3. On 21 May 1986, the Board of Pardons and Parole (the "Board") resolved to recommend to the President
the cancellation of the conditional pardon granted to the petitioner. In making its recommendation to the
President, the Board relied upon the decisions of this Court in Tesoro vs. Director of Prisons (68 Phil. 154
[1939]) and Espuelas vs. Provincial Warden of Bohol (108 Phil. 356 [1960]). The evidence before the Board
showed that on 22 March 1982 and 24 June 1982, petitioner had been charged with twenty counts of estafa
in Criminal Cases Nos. Q-19672 and Q-20756, which cases were then (on 21 May 1986) pending trial before
the Regional Trial Court of Rizal (Quezon City). The record before the Board also showed that on 26 June
1985, petitioner had been convicted by the Regional Trial Court of Rizal (Quezon City) of the crime of sedition
in Criminal Case No. Q-22926; this conviction was then pending appeal before the Intermediate Appellate
Court. The Board also had before it a letter report dated 14 January 1986 from the National Bureau of
Investigation ("NBI"), addressed to the Board, on the petitioner. Per this letter, the records of the NBI showed
that a long list of charges had been brought against the petitioner during the last twenty years for a wide
assortment of crimes including estafa, other forms of swindling, grave threats, grave coercion, illegal
possession of firearms, ammunition and explosives, malicious mischief, violation of Batas Pambansa Blg. 22,
and violation of Presidential Decree No. 772 (interfering with police functions). Some of these charges were
Identified in the NBI report as having been dismissed. The NBI report did not purport to be a status report on
each of the charges there listed and Identified.

4. On 4 June 1986, the respondent Minister of Justice wrote to the President of the Philippines informing her
of the Resolution of the Board recommending cancellation of the conditional pardon previously granted to
petitioner.

10
5. On 8 September 1986, the President cancelled the conditional pardon of the petitioner.

6. On 10 October 1986, the respondent Minister of Justice issued "by authority of the President" an Order of
Arrest and Recommitment against petitioner. The petitioner was accordingly arrested and confined in
Muntinlupa to serve the unexpired portion of his sentence.

Petitioner now impugns the validity of the Order of Arrest and Recommitment. He claims that he did not violate his
conditional pardon since he has not been convicted by final judgment of the twenty (20) counts of estafa charged in
Criminal Cases Nos. Q-19672 and Q-20756 nor of the crime of sedition in Criminal Case No. Q-22926.3 Petitioner also
contends that he was not given an opportunity to be heard before he was arrested and recommitted to prison, and
accordingly claims he has been deprived of his rights under the due process clause of the Constitution.

The issue that confronts us therefore is whether or not conviction of a crime by final judgment of a court is necessary
before the petitioner can be validly rearrested and recommitted for violation of the terms of his conditional pardon and
accordingly to serve the balance of his original sentence.

This issue is not novel. It has been raised before this Court three times in the past. This Court was first faced with this
issue in Tesoro Director of Prison.4 Tesoro, who had been convicted of the crime of falsification of public documents,
was granted a parole by the then Governor-General. One of the conditions of the parole required the parolee "not [to]
commit any other crime and [to] conduct himself in an orderly manner."5 Two years after the grant of parole, Tesoro
was charged before the Justice of the Peace Court of San Juan, Rizal, with the crime of adultery said to have been
committed with the wife of Tesoro's brother-in-law. The fiscal filed with the Court of First Instance the corresponding
information which, however, was dismissed for non-appearance of the complainant. The complainant then went before
the Board of Indeterminate Sentence and charged Tesoro with violation of the conditions of his parole. After
investigation by the parole officer, and on the basis of his report, the Board recommended to the President of the
Philippines the arrest and recommitment of the petitioner. Tesoro contended, among other things, that a "judicial
pronouncement to the effect that he has committed a crime" is necessary before he could properly be adjudged as
having violated his conditional parole.

Addressing this point, this Court, speaking through then Mr. Justice Moran, held that the determination of whether the
conditions of Tesoro's parole had been breached rested exclusively in the sound judgment of the Governor-General
and that such determination would not be reviewed by the courts. As Tesoro had consented to place his liberty on
parole upon the judgment of the power that had granted it, we held that "he [could not] invoke the aid of the courts,
however erroneous the findings may be upon which his recommitment was ordered."6 Thus, this Court held that by
accepting the terms under which the parole had been granted, Tesoro had in effect agreed that the Governor-
General's determination (rather than that of the regular courts of law) that he had breached one of the conditions of
his parole by committing adultery while he was conditionally at liberty, was binding and conclusive upon him. In
reaching this conclusion, this Court relied upon Section 64 (i) of the Revised Administrative Code which empowered
the Governor-General

to grant to convicted prisoners reprieves or pardons, either plenary or partial, conditional or unconditional; to
suspend sentences without parole, remit fines, and order the discharge of any convicted person upon parole,
subject to such conditions as he may impose; and to authorize the arrest and recommitment of any such
person who, in his judgment, shall fail to comply with the condition or conditions, of his pardon, parole or
suspension of sentence. (Emphasis supplied)

In Sales vs. Director of Prisons,7 the petitioner had been convicted of the crime of frustrated murder. After serving a
little more than two years of his sentence, he was given a conditional pardon by the President of the Philippines, "the
condition being that he shall not again violate any of the penal laws of the Philippines and that, should this condition
be violated, he shall be proceeded against in the manner prescribed by law."8 Eight years after the grant of his
conditional pardon, Sales was convicted of estafa and sentenced to three months and eleven days of arresto mayor.
He was thereupon recommitted to prison to serve the unexpired portion of his original sentence. Sales raised before
this Court two principal contentions. Firstly, he argued that Section 64 (i) of the Revised Administrative Code had been

11
repealed by Article 159 of the Revised Penal Code. He contended, secondly, that Section 64 (i) was in any case
repugnant to the due process clause of the Constitution (Article III [1], 1935 Constitution). This Court, through Mr.
Justice Ozaeta speaking for the majority, rejected both contentions of Sales.

Sales held, firstly, that Article 159 of the Revised Penal Code did not repeal Section 64 (i) Revised Administrative
Code. It was pointed out that Act No. 4103, the Indeterminate Sentence Law, which was enacted subsequent to the
Revised Penal Code, expressly preserved the authority conferred upon the President by Section 64. The Court also
held that Article 159 and Section 64 (i) could stand together and that the proceeding under one provision did not
necessarily preclude action under the other. Sales held, secondly, that Section 64 (i) was not repugnant to the
constitutional guarantee of due process. This Court in effect held that since the petitioner was a convict "who had
already been seized in a constitutional was been confronted by his accusers and the witnesses against him-, been
convicted of crime and been sentenced to punishment therefor," he was not constitutionally entitled to another judicial
determination of whether he had breached the condition of his parole by committing a subsequent offense. Thus:

[a] statute [like Section 64 (i)] supervenes to avoid the necessity for any action by the courts in the premises.
The executive clemency under it is extended upon the conditions named in it, and he accepts it upon those
conditions. One of these is that the governor may withdraw his grace in a certain contingency, and another is
that the governor shall himself determine when that contingency has arisen. It is as if the convict, with full
competency to bind himself in the premises, had expressly contracted and agreed, that, whenever the
governor should conclude that he had violated the conditions of his parole, an executive order for his arrest
and remandment to prison should at once issue, and be conclusive upon him. 9

In Espuelas vs. Provincial Warden of Bohol,10 the petitioner had been convicted of the crime of inciting to sedition.
While serving his sentence, he was granted by the President a conditional pardon "on condition that he shall not again
violate any of the penal laws of the Philippines."11 Espuelas accepted the conditional pardon and was released from
confinement. Sometime thereafter, he was convicted by the Justice of the Peace Court in Tagbilaran, Bohol, of the
crime of usurpation of authority. He appealed to the Court of First Instance. Upon motion of the provincial fiscal, the
Court of First Instance dismissed the case provisionally, an important prosecution witness not having been available
on the day set for trial. A few months later, upon recommendation of the Board of Pardons and Parole, the President
ordered his recommitment to prison to serve the unexpired period of his original sentence.

The Court in Espuelas reaffirmed the continuing force and effect of Section 64 (i) of the Revised Administrative Code.
This Court, quoting Tesoro and Sales, ruled that:

Due process is not necessarily judicial The appellee had had his day in court and been afforded the opportunity
to defend himself during his trial for the crime of inciting to sedition, with which he was charged, that brought
about or resulted in his conviction, sentence and confinement in the penitentiary. When he was conditionally
pardoned it was a generous exercise by the Chief Executive of his constitutional prerogative. The acceptance
thereof by the convict or prisoner carrie[d] with it the authority or power of the Executive to determine whether
a condition or conditions of the pardon has or have been violated. To no other department of the Government
[has] such power been intrusted. 12

The status of our case law on the matter under consideration may be summed up in the following propositions:

1. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely
executive acts which are not subject to judicial scrutiny.

2. The determination of the occurrence of a breach of a condition of a pardon, and the proper consequences
of such breach, may be either a purely executive act, not subject to judicial scrutiny under Section 64 (i) of the
Revised Administrative Code; or it may be a judicial act consisting of trial for and conviction of violation of a
conditional pardon under Article 159 of the Revised Penal Code. Where the President opts to proceed under
Section 64 (i) of the Revised Administrative Code, no judicial pronouncement of guilt of a subsequent crime

12
is necessary, much less conviction therefor by final judgment of a court, in order that a convict may be
recommended for the violation of his conditional pardon.

3. Because due process is not semper et unique judicial process, and because the conditionally pardoned
convict had already been accorded judicial due process in his trial and conviction for the offense for which he
was conditionally pardoned, Section 64 (i) of the Revised Administrative Code is not afflicted with a
constitutional vice.

We do not believe we should depart from the clear and well understood rules and doctrine on this matter.

It may be emphasized that what is involved in the instant case is not the prosecution of the parolee for a subsequent
offense in the regular course of administration of the criminal law. What is involved is rather the ascertainment of
whether the convict has breached his undertaking that he would "not again violate any of the penal laws of the
Philippines" for purposes of reimposition upon him of the remitted portion of his original sentence. The consequences
that we here deal with are the consequences of an ascertained breach of the conditions of a pardon. A convict granted
conditional pardon, like the petitioner herein, who is recommitted must of course be convicted by final judgment of a
court of the subsequent crime or crimes with which he was charged before the criminal penalty for such subsequent
offense(s) can be imposed upon him. Again, since Article 159 of the Revised Penal Code defines a distinct,
substantive, felony, the parolee or convict who is regarded as having violated the provisions thereof must be charged,
prosecuted and convicted by final judgment before he can be made to suffer the penalty prescribed in Article 159. 1avvphi1

Succinctly put, in proceeding against a convict who has been conditionally pardoned and who is alleged to have
breached the conditions of his pardon, the Executive Department has two options: (i) to proceed against him under
Section 64 (i) of the Revised Administrative Code; or (ii) to proceed against him under Article 159 of the Revised Penal
Code which imposes the penalty of prision correccional, minimum period, upon a convict who "having been granted
conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon." Here, the President has
chosen to proceed against the petitioner under Section 64 (i) of the Revised Administrative Code. That choice is an
exercise of the President's executive prerogative and is not subject to judicial scrutiny.

WHEREFORE, this Petition is hereby DISMISSED. No pronouncement as to costs.

SO ORDERED.

Teehankee, C.J., Fernan, Melencio-Herrera, Gutierrez, Jr., Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ.,
concur.
Yap, J., is on leave.
Narvasa, J., took no part.

13
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 75025 September 14, 1993

VICENTE GARCIA, petitioner,


vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE MINISTER, LAND
TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM REGIONAL OFFICE
NO. IV, respondents.

Eulogio B. Alzaga for petitioner.

The Solicitor General for respondents.

BELLOSILLO, J.:

Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of respondent Commission
on Audit (COA) denying his claim for payment of back wages, after he was reinstated to the service pursuant to an
executive clemency. He prays for the extraordinary remedy of mandamus against public respondents to enforce his
claim.

Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City.
On 1 April 1975, petitioner was summarily dismissed from the service on the ground of dishonesty in accordance with
the decision of the then Ministry of Public Works, Transportation and Communications in Adm. Case No. 975 for the
loss of several telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon,
telecom lines. Petitioner did not appeal from the decision.

Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against
petitioner with the then Court of First Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial
court rendered its decision acquitting petitioner of the offense charged.

Consequently, petitioner sought reinstatement to his former position


in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's request to be reinstated
was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the Philippines for
executive clemency.

On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation and Communications
and the Civil Service Commission, Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the
President, per Resolution No. O.P. 1800, granted executive clemency to petitioner.

Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1 April 1975, the date of
his dismissal from the service. This was denied by the COA in its 5th Indorsement dated 12 October 1982 on the
ground that the executive clemency granted to him did not provide for the payment of back salaries and that he has
not been reinstated in the service.
14
It appears that petitioner was recalled to the service on 12 March 1984 but the records do not show whether petitioner's
reinstatement was to the same position of Supervising Lineman.1

Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the date of his dismissal, to
12 March 1984, when he was reinstated. In Decision No. 362 embodied in its 3rd Indorsement dated 23 July 1985,
respondent COA denied the claim stating that the executive clemency was silent on the payment of back wages and
that he had not rendered service during the period of his claim.

Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986,
Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal
and constitutional constraint,"2 holding that this Court is the proper forum to take cognizance of the appeal
on certiorari from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A],
Sec. 7, of the 1987 Constitution).

Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of back wages after
having been reinstated pursuant to the grant of executive clemency.

In his comment to the petition, the Solicitor General recommends that the petition be given due course and the
petitioner be awarded back wages to be determined in the light of existing laws and jurisprudence. The Solicitor
General submits that the award is implicit in the grant of executive clemency, the ultimate objective of which is to
accord full justice to petitioner.

On the other hand, the COA asks this Court to deny the petition for the following reasons: (a) petitioner's acquittal in
the criminal case did not necessarily free him from administrative liability; (b) petitioners unexplained failure to appeal
the decision in the administrative case was tantamount to a waiver or renunciation of his right to back wages; (c) the
executive clemency was granted to petitioner for the purpose of reinstatement only since it was silent on the matter
of back wages; (d) the award of back wages is allowed only if the respondent is exonerated from the administrative
charge that his suspension or dismissal is declared illegal or unjustified by the court; and, (e) petitioner did not render
any service during the period before his reinstatement, hence, he is not entitled to back wages based on the "no
service, no pay" rule.

The petition is meritorious.

Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of
grace and humanity, in proper cases. Without such a power of clemency, to be exercised by some department or
functionary of a government, a country would be most imperfect and deficient in its political morality and in that attribute
of Deity whose judgments are always tempered with money.3

Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency
under the following circumstances:

Except in cases of impeachment or as otherwise provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final
judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members
of the Congress.4

From among the different acts of executive clemency spelled out above, the clemency granted to petitioner in the
instant case partakes of the nature of an executive pardon. A reading of Resolution No. 1800 partly quoted hereunder
is enlightening:

15
In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications interposed no
objection to the petition, while the Minister of Transportation and Communications, in his 4th
Indorsement dated November 17, 1980, favorably recommended the grant of executive clemency to
petitioner for the reason that "while it is a rule that an administrative case is separate and distinct from
a criminal case and an acquittal in the latter case dos not ipso facto result in the exoneration in the
former case, yet an exception could arise if the basis for the acquittal was the innocence of the accused
as in the case of petitioner Garcia.

Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil service
Commission recommends the grant of executive clemency to petitioner in view of the findings of the
court that

instead of coming forward to the defense of the accused who actually was authorized
to uproot or recover the poles in question and of commending the latter for his high
sense of responsibility in preventing losses to the government, said high officials had
even the temerity to disown and deny the authority they gave to the accused resulting
in his separation from the service and having him all alone in defending himself against
the accusation of the very government he tried to protect.

After a careful study, this Office is inclined to grant executive clemency to petitioner in the light of this
decision of the court acquitting him of the crime of qualified theft which was based on the same acts
obtaining in Administrative Case No. 975 against him, coupled with the favorable recommendation of
the Minister of Transportation and Communications and the Civil Service Commission.

In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency.5

Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted. In Monsanto
v. Factoran,6 we have firmly established the general rule that while a pardon has generally been regarded as blotting
out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the
offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not
forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the
individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded
on the person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned
offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the
offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for
reappointment, he is not entitled to back wages.

But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes
him a new man and as innocent; as if he had not been found guilty of the offense charged.7 When a person is given
pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of
his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding
of guilt.

In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the
service. However, he was later acquitted by the trial court of the charge of qualified theft based on the very same acts
for which he was dismissed. The acquittal of petitioner by the trial court was founded not on lack of proof beyond
reasonable doubt but on the fact that petitioner did not commit the offense imputed to him. Aside from finding him
innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant. Verily,
petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable
recommendations for his reinstatement by the Ministry of Transportation and Communications and the Civil Service
Commission.

16
The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the
administrative decision which found him guilty of dishonesty and ordered his separation from the service. This can be
inferred from the executive clemency itself exculpating petitioner from the administrative charge and thereby directing
his reinstatement, which is rendered automatic by the grant of the pardon. This signifies that petitioner need no longer
apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the
clemency.

Petitioner's automatic reinstatement to the government service entitles him to back wages.8 This is meant to afford
relief to petitioner who is innocent from the start and to make reparation for what he has suffered as a result of his
unjust dismissal from the service. To rule otherwise would defeat the very intention of the executive clemency, i.e., to
give justice to petitioner. Moreover, the right to back wages is afforded to those with have been illegally dismissed and
were thus ordered reinstated or to those otherwise acquitted of the charges against them.9 There is no doubt that
petitioner's case falls within the situations aforementioned to entitle him to back wages.

Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried
with it forfeiture of the right to hold public office, but is the direct consequence of an administrative decision of a branch
of the Executive Department over which the President, as its head, has the power of control. The President's control
has been defined to mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer
had done in the performance of his duties and to the judgment of the former for the latter." 10 In pardoning petitioner
and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the
Ministry of Transportation and Communications. The clemency nullified the dismissal of petitioner and relieved him
from administrative liability. The separation of the petitioner from the service being null and void, he is thus entitled to
back wages.

After having been declared innocent of the crime of qualified theft, which also served as basis for the administrative
charge, petitioner should not be considered to have left his office for all legal purposes, so that he is entitled to all the
rights and privileges that accrued to him by virtue of the office held, including back wages. 11

Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an illegally dismissed
government employee who has been ordered reinstated. 12 The cases heretofore decided by this Court show that
petitioners therein were employees of local governments who were removed from office by their local officials. The
reasons given for their removal were abolition of office or position, reduction of work force, or lack of funds on the part
of the local governments concerned, which reasons were found by this Court to be either devoid of factual basis or
not sufficiently proven, otherwise, their dismissal would have been valid and justified. In contrast, the case before us
is different, involving as it does circumstances that impel us to deviate from the general rule previously laid down on
the recovery of back wages for five (15) years. Petitioner's reinstatement in the instant case which was ordered
pursuant to a grant of executive clemency was effected not because of lack of sufficient proof of his commission of
the offense but that, more importantly, he did not commit the offense charged. Verily, law, equity and justice dictate
that petitioner be afforded compassion for the embarrassment, humiliation and, above all, injustice caused to him and
his family by his unfounded dismissal. This Court cannot help surmising the painful stigma that must have caused
petitioner, the incursion on his dignity and reputation, for having been adjudged, albeit wrongfully, a dishonest man,
and worse, a thief. Consequently, this Court finds it fair and just to award petitioner full back wages from 1 April 1975
when he was illegally dismissed, to 12 March 1984 when he was reinstated. The payment shall be without deduction
or qualification.

WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July 1985 is
REVERSED and SET ASIDE, and a new one entered ordering public respondents, the Chairman of the Commission
on Audit, the Minister (now Secretary) of Land Transportation and Communications, the Regional Director of Telecom
Regional Office No. IV, or whoever may be sitting in office in their stead, to pay the full amount of petitioner's back
salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale.

SO ORDERED.

17
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

18
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 87687 December 26, 1989

ISABELO T. SABELLO, petitioner,


vs.
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.

GANCAYCO, J.:

In this petition filed by a non-lawyer by reason of alleged poverty, We are called upon to decide a unique issue of
which shall be given more importance the legal technicalities of the law or the fundamental principles of justice and
fairness.

The facts are not in dispute, as follows:

Petitioner, was the Elementary School Principal of Talisay and also the Assistant Principal of the
Talisay Barangay High School of the Division of Gingoog City. The barangay high school was in deficit
at that time due to the fact that the students could hardly pay for their monthly tuition fees. Since at
that time also, the President of the Philippines who was earnestly campaining was giving aid in the
amount of P 2,000.00 for each barrio, the barrio council through proper resolutions alloted the amount
of P 840.00 to cover up for the salaries of the high school teachers, with the honest thought in mind
that the barrio high school was a barrio project and as such therefore, was entitled to its share of the
RICD fund in question. The only part that the herein petitioner played was his being authorized by the
said barrio council to withdraw the above amount and which was subsequently deposited in the City
Treasurer's Office in the name of the Talisay Barrio High School. That was a grave error on the part
of the herein petitioner as it involves the very intricacies in the disbursement of government funds and
of its technicalities. Thus, the herein petitioner, together with the barrio captain, were charged of the
violation of Republic Act 3019, and both were convicted to suffer a sentence of one year and
disqualification to hold public office. The herein petitioner appealed his case to the Court of appeals,
Manila. The Court of appeals modified the decision by eliminating the subsidiary imprisonment in case
of insolvency in the payment of one-half of the amount being involved. The herein petitioner, being
financially battered, could no longer hire a lawyer to proceed to the highest court of the land.

Finally, the herein petitioner was granted an ABSOLUTE PARDON by the President of the Republic
of the Philippines, restoring him to 'full civil and political rights.' With this instrument on hand, the herein
petitioner applied for reinstatement to the government service, only to be reinstated to the wrong
position of a mere classroom teacher and not to his former position as Elementary School Principal I.1

Petitioner now prays to this Court for the following relief:

1. (that he be) Reinstated to his former position as Elementary School Principal I;

2. His government services be made continuous since September 10, 1948 which is
his original appointment until the present time;

19
3. (that he be) Given his back salaries corresponding to the period from September 1,
1971 to November 23,1982;

4. That all his service credits duly earned be restored;

5. And, that all other rights and privileges not mentioned herein shall also be granted.
(Petition, p. 2) 2

The Solicitor General comments that there is no justiciable controversy in this case because the issue involved is
whether or not petitioner merits reappointment to the position he held prior to his conviction that of Elementary
Principal I. The Division of City Schools, Gingoog City, Region X, Department of Education and Culture, did not act
on petitioner's request. Hence, the present petition.

We believe otherwise. There is here a justiciable controversy. Petitioner claims he must be restored to the same
position he was in before he was convicted on a mere technical error and for which he was given an absolute pardon.

This is not a hypothetical or abstract dispute. It is not academic or moot for, to our mind, there is a definite and concrete
controversy touching the legal relations of parties having adverse legal relations. This is a real and substantial
controversy admitting of specific relief through a court decree that is conclusive in character. The case does not call
for a mere opinion or advise, but for affirmative relief .

As a general rule, the question of whether or not petitioner should be reappointed to his former position is a matter of
discretion of the appointing authority, but under the circumstances of this case, if the petitioner had been unfairly
deprived of' what is rightfully his, the discretion is qualified by the requirements of giving justice to the petitioner. It is
no longer a matter of discretion on the part of the appointing power, but discretion tempered with fairness and justice.

As to the argument that the Department of Education, Culture and Sports cannot be sued, the only answer is that its
officials can be sued for alleged grave errors in their official acts. Again, We ignore technicality by considering this a
suit against the officials of this government agency.

Taking into consideration that this petition is filed by a non-lawyer, who claims that poverty denies him the services of
a lawyer, We also set aside the requirement of exhaustion of administrative remedies and resolved to go direct to the
merits of the petition.

In Monsanto vs. Factoran, Jr., 3 this Court held that the absolute disqualification from office or ineligibility from public
office forms part of the punishment prescribed under the penal code and that pardon frees the individual from all the
penalties and legal disabilities and restores him to all his civil rights. Although such pardon restores his eligibility to a
public office it does not entitle him to automatic reinstatement. He should apply for reappointment to said office.

In the present case after his absolute pardon, petitioner was reinstated to the service as a classroom teacher by the
Department of Education, Culture and Sports.

As there are no circumstances that would warrant the diminution in his rank, justice and equity dictate that he be
returned to his former position of Elementary School Principal I and not to that of a mere classroom teacher.

However, the Court cannot grant his prayer for backwages from September 1, 1971 to November 23, 1982 since
in Monsanto 4 this Court said he is not entitled to automatic reinstatement. Petitioner was lawfully separated from the
government service upon his conviction for an offense. Thus, although his reinstatement had been duly authorized, it
did not thereby entitle him to backwages. Such right is afforded only to those who have been illegally dismissed and
were thus ordered reinstated or to those otherwise acquitted of the charge against them.

20
In the same light, the Court cannot decree that his government service be made continuous from September 10, 1948
to the present when it is not. At any rate when he reaches the compulsory age of retirement, he shall get the
appropriate retirement benefits as an Elementary School Principal I and not as a mere classroom teacher.

WHEREFORE, the petition is GRANTED in that the Secretary of the Department of Education, Culture and Sports
and/or his duly authorized representative is hereby directed to appoint petitioner to the position of Elementary School
Principal I or it equivalent, without pronouncement as to cost. This decision is immediately executory.

SO ORDERED.

Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-1278 January 21, 1949

LORETO BARRIOQUINTO and NORBERTO JIMENEZ, petitioners,


vs.
ENRIQUE A. FERNANDEZ, ANTONIO BELMONTE and FELICISIMO OCAMPO, as Commissioners of the
Fourteenth Guerrilla Amnesty Commission, respondents.

Roseller T. Lim for petitioners.


Antonio Belmonte for respondents.

FERIA, J.:

This is a special action of mandamus instituted by the petitioners against the respondents who composed the 14th
Guerrilla Amnesty Commission, to compel the latter to act and decide whether or not the petitioners are entitled to the
benefits of amnesty.

Petitioners Norberto Jimenez and Loreto Barrioquinto were charged with the crime of murder. As the latter had not
yet been arrested the case proceeded against the former, and after trial Court of First Instance of Zamboanga
sentenced Jimenez to life imprisonment. Before the period for perfecting an appeal had expired, the defendant
Jimenez became aware of the Proclamation No. 8, dated September 7, 1946, which grants amnesty in favor of all
persons who may be charged with an act penalized under the Revised Penal Code in furtherance of the resistance to
the enemy or against persons aiding in the war efforts of the enemy, and committed during the period from December
8, 1941, to the date when particular area of the Philippines where the offense was actually committed was liberated
from enemy control and occupation, and said Jimenez decided to submit his case to the Guerrilla Amnesty
Commission presided by the respondents herein, and the other petitioner Loreto Barrioquinto, who had then been
already apprehended, did the same.

After a preliminary hearing had started, the Amnesty Commission, prescribed by the respondents, issued on January
9, 1947, an order returning the cases of the petitioners to the Court of First Instance of Zamboanga, without deciding
whether or not they are entitled to the benefits of he said Amnesty Proclamation, on the ground that inasmuch as
neither Barrioquinto nor Jimenez have admitted having committed the offense, because Barrioquinto alleged that it
was Hipolito Tolentino who shot and killed the victim, they cannot invoke the benefits of amnesty.

The Amnesty Proclamation of September 7, 1946, issued by the President with the concurrence of Congress of the
Philippines, reads in part as follows:
21
WHEREAS, since the inception of the war until the liberation of the different areas comprising the territory of
the Philippines, volunteer armed forces of Filipinos and for of other nationalities operated as guerrillas and
other patriotic individuals and groups pursued activities in opposition to the forces and agents of the Japanese
Empire in the invasion and occupation of the Philippines;

WHEREAS, members of such forces, in their determined efforts to resist the enemy, and to bring about his
ultimate defeat, committed acts penalized under the Revised Penal Code;

WHEREAS, charges have been presented in the courts against many members of these resistance forces,
for such acts;

WHEREAS, the fact that such acts were committed in furtherance of the resistance to the enemy is not a valid
defense under the laws of the Philippines;

WHEREAS, the persons so accused should not be regarded as criminals but rather as patriots and heroes
who have rendered invaluable service to the nation; and

WHEREAS, it is desirable that without the least possible delay, these persons be freed form the indignity and
the jeopardy to which they are now being subjected;

NOW, THEREFORE, I Manuel Roxas, President of the Philippines in accordance with the provisions of Article
VII, section 10, paragraph 6 of the Constitution, do hereby declare and proclaim an amnesty inn favor of al
persons who committed any act penalized under the Revised Penal Code in furtherance of the resistance to
the enemy or against persons aiding in the war effort of the enemy, and committed during the period from
December 8, 1941 to the date when each particular area of the Philippines was actually liberated from the
enemy control and occupation. This amnesty shall not apply to crimes against chastity or to acts committed
from purely personal motives.

It is further proclaimed and declared that in order to determine who among those against whom charges have
been filed before the courts of the Philippines or against whom charges may be filed in the future, come within
the terms of this amnesty, Guerrilla Amnesty Commissions, simultaneously to be established , shall examine
the facts and circumstance surrounding each case and, if necessary, conduct summary hearings of witnesses
both for the complainant and the accused. These Commissions shall decided each case and, upon finding
that it falls within the terms of this proclamation, the Commissions shall so declare and this amnesty shall
immediately be effective as to the accused, who shall forthwith be released or discharged.

The theory of the respondents, supported by the dissenting opinion, is predicated on a wrong conception of the nature
or character of an amnesty. Amnesty must be distinguished from pardon.

Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the
person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive
with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. Pardon is
granted to one after conviction; while amnesty is granted to classes of persons or communities who may be guilty of
political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction.
Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted,
that is, it abolished or forgives the punishment, and for that reason it does ""nor work the restoration of the rights to
hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon," and it
"in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence" article 36,
Revised Penal Code). while amnesty looks backward and abolishes and puts into oblivion the offense itself, it so
overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the
law precisely as though he had committed no offense. (section 10[6], Article VII, Philippine Constitution; State vs.
Blalock, 62 N.C., 242, 247; In re Briggs, 135 N.C., 118; 47 S.E. 402., 403; Ex parte Law, 35 GA., 285, 296; State ex

22
rel AnheuserBusch Brewing Ass'n. vs. Eby, 170 Mo., 497; 71 S.W 52, 61; Burdick vs United States, N.Y., 35 S. Ct.,
267; 271; 236 U.S., 79; 59 Law. ed., 476.)

In view of the foregoing, we are of the opinion and so hold that, in order to entitle a person to the benefits of the
Amnesty Proclamation of September 7, 1946, it is not necessary that he should, as a condition precedent or sine qua
non, admit having committed the criminal act or offense with which he is charged and allege the amnesty as a defense;
it is sufficient that the evidence either of the complainant or the accused, shows that the offense committed comes
within the terms of said Amnesty Proclamation. Hence, it is not correct to say that "invocation of the benefits of amnesty
is in the nature of a plea of confession and avoidance." Although the accused does not confess the imputation against
him, he may be declared by the courts or the Amnesty Commissions entitled to the benefits. For, whether or not he
admits or confesses having committed the offense with which he is charged, the Commissions should, if necessary
or requested by the interested party, conduct summary hearing of the witnesses both for the complainants and the
accused, on whether he has committed the offense in furtherance of the resistance to the enemy, or against persons
aiding in the war efforts of the enemy, and decide whether he is entitled to the benefits of amnesty and to be "regarded
as a patriot or hero who have rendered invaluable services to the nation,," or not, in accordance with the terms of the
Amnesty Proclamation. since the Amnesty Proclamation is a public act, the courts as well as the Amnesty
Commissions created thereby should take notice of the terms of said Proclamation and apply the benefits granted
therein to cases coming within their province or jurisdiction, whether pleaded or claimed by the person charged with
such offenses or not, if the evidence presented show that the accused is entitled to said benefits.

The right to the benefits of amnesty, once established by the evidence presented either by the complainant or
prosecution, or by the defense, can not be waived, because it is of public interest that a person who is regarded by
the Amnesty Proclamation which has the force of a law, not only as innocent, for he stands in the eyes of the law as
if he had never committed any punishable offense because of the amnesty, but as a patriot or hero, can not be
punishment as a criminal. Just as the courts of justice can not convict a person who, according to the evidence, has
committed an act not punishable by law, although he confesses being guilty thereof, so also and a fortiori they can
not convict a person considered by law not a criminal, but as a patriot and hero, for having rendered invaluable
services to the nation inn committing such an act.

While it is true that the evidence must show that the offense charged was against chastity and was committed in
furtherance of the resistance against the enemy, for otherwise, it is to be naturally presumed that is has been
committed for purely personal motive, it is nonetheless true that though the motive as a mental impulse is state of
mind or subjective, it need not be testified to be the defendant himself at his arraignment or hearing of the case.
Generally the motive for the commission of an offense is established by the testimony of witnesses on the acts or
statements of the accused before or immediately after the commission of the offense, deeds or words hat may express
it or from which his motive or reason for committing it may be inferred. The statement of testimony of a defendant at
the time of arraignment or the hearing of the case about said motive, can not generally be considered and relied on,
specially if there is evidence to the contrary, as the true expression of the reason o motive he had at the time of
committing the offense. Because such statements or testimony may be an afterthought or colored by the interest he
may have to suit his defense or the purpose for which he intends to achieve with such declaration. Hence it does not
stand to reason and logic to say, as the dissenting opinion avers, that unless the defendant admits at the investigation
or hearing having committed the offense with which he is charged, and states that he did it in furtherance of the
resistance to the enemy, and not for purely personal motive, it is impossible for the court of Commission to verify the
motive for the commission of the offense, because only the accused could explain of the offense, because only the
accused could explain his belief and intention or the motive of committing the offense.

There is no necessity for an accused to admit his responsibility for the commission of a criminal act before a court of
Amnesty Commission may investigate and extend or not to him the benefits of amnesty. The fact that he pleads not
guilty or that he has not committed the act with which he is charged, does not necessarily prove that he is not guilty
thereof. Notwithstanding his denial, the evidence for the prosecution or complainant may show the contrary, as it is
generally the case in criminal proceedings, and what should in such a case be determined is whether or not the
offense committed is of political character. The plea of not having committed the offense made by an accused simply
means that he can not be convicted of the offense charged because he is not guilty thereof, and, even if the evidence

23
would show that he is, because he has committed it in furtherance of the resistance to the enemy or against persons
a ding in the war efforts of the enemy, and not for purely political motives.

According to Administrative Order No. 11 of October 2, 1946, creating the Amnesty Commissions, issued by the
President of the Philippines, cases pending in the Courts of First Instance of the province in which the accused claims
the benefits of Amnesty Proclamation, and cases already decided by said courts but not yet elevated on appeal to the
appellate courts, shall be passed upon and decided by the respective Amnesty Commission, and cases pending
appeal shall be passed upon by the Seventh Amnesty Commission. Under the theory of the respondents and the
writer oft he dissenting opinion, the Commissions should refuse to comply with the directive of said Administrative
Order, because is almost all cases pending in the Court of First Instance, and all those pending appeal form the
sentence of said courts, the defendants must not have pleaded guilty or admitted having committed the offense
charged for otherwise, they would not or could not have appealed from the judgment of the Courts of First Instance.
To hold that a Amnesty Commission should not proceed to the investigation and act and decide whether the offense
with which an accused was charged comes within the Amnesty Proclamation if he does not admit or confess having
committed it would be to defeat the purpose for which the Amnesty Proclamation was issued and the Amnesty
Commission were established. If the courts have to proceed to the trail or hearing of a case and decide whether the
offense committed by the defendant comes within the terms of the Amnesty Proclamation although the defendant has
plead not guilty, there is no reason why the Amnesty Commissions can not do so. Where a defendant to admit or
confess having committed the offense or being responsible therefor before he can invoke the benefit of amnesty, as
there is no law which makes such admission or confession not admissible as evidence against him in the courts of
justices in case the Amnesty Commission finds that the offense does not come within the terms of the Amnesty
Proclamation, nobody or few would take the risk of submitting their case to said Commission.

Besides, in the present case, the allegation of Loreto Barrioquinto that the offended party or victim was shot and killed
by Agapito Hipolito , does not necessarily bar the respondents from finding, after the summary hearing of the witnesses
for the complaints and the accused, directed in the said Amnesty Proclamation and Administrative Order No. 11, that
the petitioners are responsible for the killing of the victim, either as principals by cooperation, inducement or
conspiration, or as accessories before as well as after the fact, but that they are entitled to the benefits of amnesty,
because they were members of the same group of guerrilleros who killed the victim in furtherance of the resistance to
the enemy or against persons aiding in the war efforts of the enemy.

Wherefore, the respondents are hereby ordered to immediately proceed to hear and decide the application for
amnesty of petitioners Barrioquinto and Jimenez, unless amnesty of petitioners Barrioquinto and Jimenez, unless the
courts have in the meantime already decided, expressly and finally, the question whether or not they are entitled to
the benefits of the Amnesty Proclamation No. 8 of September 7, 1946. So ordered.

Moran, C. J., Paras, Bengzon, and Briones, JJ., concur.

24
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 78239 February 9, 1989

SALVACION A. MONSANTO, petitioner,


vs.
FULGENCIO S. FACTORAN, JR., respondent.

FERNAN, C.J.:

The principal question raised in this petition for review is whether or not a public officer, who has been granted an
absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new
appointment.

In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then
assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public
documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of prision
correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500.
They were further ordered to jointly and severally indemnify the government in the sum of P4,892.50 representing the
balance of the amount defrauded and to pay the costs proportionately.

Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a
motion for reconsideration but while said motion was pending, she was extended on December 17, 1984 by then
President Marcos absolute pardon which she accepted on December 21, 1984.

By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former
post as assistant city treasurer since the same was still vacant.

Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local
Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry.
In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her position
without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. It also
directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be
indemnified in favor of the government as well as the costs of the litigation, be satisfied. 1

Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985 stressing that the full
pardon bestowed on her has wiped out the crime which implies that her service in the government has never been
interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension
which is August 1, 1982; that she is entitled to backpay for the entire period of her suspension; and that she should
not be required to pay the proportionate share of the amount of P4,892.50. 2

The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further review and action.
On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held:

We disagree with both the Ministry of Finance and the petitioner because, as borne out by the records,
petitioner was convicted of the crime for which she was accused. In line with the government's crusade
to restore absolute honesty in public service, this Office adopts, as a juridical guide (Miranda v.
25
Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v. Lising, Crim.
Case No. 6675, October 4, 1985, that acquittal, not absolute pardon, of a former public officer is the
only ground for reinstatement to his former position and entitlement to payment of his salaries, benefits
and emoluments due to him during the period of his suspension pendente lite.

In fact, in such a situation, the former public official must secure a reappointment before he can
reassume his former position. ...

Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon shall
in no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence."
(Sec. 36, par. 2).

IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an
automatic reinstatement on the basis of the absolute pardon granted her but must secure an
appointment to her former position and that, notwithstanding said absolute pardon, she is liable for the
civil liability concomitant to her previous conviction. 3

Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf We
gave due course on October 13, 1987.

Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the fact that she
was extended executive clemency while her conviction was still pending appeal in this Court. There having been no
final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been
terminated or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of
office did not attach and the status of her employment remained "suspended." More importantly, when pardon was
issued before the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the
President has declared her not guilty of the crime charged and has accordingly dismissed the same. 4

It is well to remember that petitioner had been convicted of the complex crime of estafa thru falsification of public
documents and sentenced to imprisonment of four years, two months and one day of prision correccional as minimum,
to ten years and one day of prision mayor as maximum. The penalty of prision mayor carries the accessory penalties
of temporary absolute disqualification and perpetual special disqualification from the right of suffrage, enforceable
during the term of the principal penalty. 5 Temporary absolute disqualification bars the convict from public office or
employment, such disqualification to last during the term of the sentence. 6 Even if the offender be pardoned, as to
the principal penalty, the accessory penalties remain unless the same have been expressly remitted by the
pardon. 7 The penalty of prision correccional carries, as one of its accessory penalties, suspension from public office. 8

The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its
legal consequences. This is not totally unexpected considering that the authorities on the subject have not been wholly
consistent particularly in describing the effects of pardon.

The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath. But Philippine
jurisprudence on the subject has been largely influenced by American case law.

Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which
exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It
is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended,
and not communicated officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and
delivery is not complete without acceptance." 8-a

At the time the antecedents of the present case took place, the pardoning power was governed by the 1973
Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads:

26
The President may, except in cases of impeachment, grant reprieves, commutations and pardons,
remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. 9

The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction,
implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was granted
even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former
limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material
when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having
accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.

Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation
to the decisive question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed
by the Revised Penal Code.

In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts on the various
consequences of pardon: "... we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December
7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or
controlled by legislative action; that an absolute pardon not only blots out the crime committed but removes all
disabilities resulting from the conviction. ... (W)e are of the opinion that the better view in the light of the constitutional
grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry
into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely
the party ... concerned from the accessory and resultant disabilities of criminal conviction.

The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the unmistakable application
of the doctrinal case of Ex Parte Garland, 13 whose sweeping generalizations to this day continue to hold sway in our
jurisprudence despite the fact that much of its relevance has been downplayed by later American decisions.

Consider the following broad statements:

A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and
when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the
eye of the law the offender is as innocent as if he had never committed the offense. If granted before
conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from
attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all
his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. 14

Such generalities have not been universally accepted, recognized or approved. 15 The modern trend of authorities now
rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has
been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally
been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though
he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or
remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction
thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness. 16

The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving the
party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the
finding of guilt. 17 But it relieves him from nothing more. "To say, however, that the offender is a "new man", and "as
innocent as if he had never committed the offense;" is to ignore the difference between the crime and the criminal. A
person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment,
though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of
crime, though it places no restraints upon him following his conviction." 18

27
A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords no relief for what has
been suffered by the offender. It does not impose upon the government any obligation to make reparation for what
has been suffered. "Since the offense has been established by judicial proceedings, that which has been done or
suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for
it can be required." 20 This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for
lost earnings and benefits.

Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not guilty of the
crime for which she was convicted. In the case of State v. Hazzard, 21 we find this strong observation: "To assume that
all or even a major number of pardons are issued because of innocence of the recipients is not only to indict our
judicial system, but requires us to assume that which we all know to be untrue. The very act of forgiveness implies
the commission of wrong, and that wrong has been established by the most complete method known to modern
civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a conviction, but they cannot
erase the stain of bad character, which has been definitely fixed. 22

In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit
all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential
prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon
blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For
whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such "moral
changes" as to equate a pardoned convict in character and conduct with one who has constantly maintained the mark
of a good, law-abiding citizen.

Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public manifestation
of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into account in their subsequent dealings
with the actor." 23

Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all
his civil rights. But unless expressly grounded on the person's innocence (which is rare), it cannot bring back lost
reputation for honesty, integrity and fair dealing. 24 This must be constantly kept in mind lest we lose track of the true
character and purpose of the privilege.

Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the
commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction 25 although such pardon undoubtedly restores his eligibility for
appointment to that office. 26

The rationale is plainly evident Public offices are intended primarily for the collective protection, safety and benefit of
the common good. They cannot be compromised to favor private interests. To insist on automatic reinstatement
because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly
untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to
anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction.

For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public office forms part
of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents. It is clear
from the authorities referred to that when her guilt and punishment were expunged by her pardon, this particular
disability was likewise removed. Henceforth, petitioner may apply for reappointment to the office which was forfeited
by reason of her conviction. And in considering her qualifications and suitability for the public post, the facts
constituting her offense must be and should be evaluated and taken into account to determine ultimately whether she
can once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has resulted in
removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post
as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment.

28
Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by the sentence.
The Court cannot oblige her. Civil liability arising from crime is governed by the Revised Penal Code. It subsists
notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation
of sentence. Petitioner's civil liability may only be extinguished by the same causes recognized in the Civil Code,
namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor,
compensation and novation. 27

WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr., dated April
15, 1986, is AFFIRMED. No costs.

SO ORDERED.

Narvasa, Paras, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Melencio-Herrera, J., concurs in the result.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-18184 January 31, 1963

GAUDENCIO VERA, RESTITUTO FIGUERAS, LORENZO AMBAS, JUSTO FLORIDO, PAULINO BAYRAN AND
JAYME GARCIA, petitioners,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.

De Mesa & De Mesa for petitioners.


Office of the Solicitor General for respondents.

BARRERA, J.:

In the Court of First Instance of Quezon, petitioners Gaudencio Vera, Restituto Figueras, Lorenzo Ambas, Justo
Florido, Paulino Bayran, and 92 others, as John Does, were charged with the complex crime of kidnapping with murder
of Amadeo Lozanes, alias Azarcon. Upon petitioners' motion, invoking the benefits of Amnesty Proclamation of the
President, series of 1946, the case was referred to the Eighth Guerrilla Amnesty Commission, which actually tried it.

During the hearing, none of the petitioner-defendants admitted having committed the crime charged. In fact,
Gaudencio Vera, the only defendant who took the witness stand, instead of admitting the killing of the deceased
Lozanes categorically denied it. Hence, the Commission, in its decision of January 12, 1956, held that it could not
take cognizance of the case, on the ground that the benefits of the Amnesty Proclamation, could be invoked only by
defendants in a criminal case who, admitting the commission of the crime, plead that said commission was in
pursuance of the resistance movement and perpetrated against persons who aided the enemy during the Japanese
occupation. Consequently, the Commission ordered that the case be remanded to the court of origin for trial. A motion
for reconsideration filed by petitioners was denied by the Commission in its order dated January 11, 1957, which partly
reads:

The Commission is convinced that the motive for the kidnapping and killing of Lt. Amadeo Lozanes of the
Hunters was the keen rivalry between the Vera's Guerrilla Party and the Hunter's ROTC Guerrilla
organizations. It is noteworthy that the Hunters were driven away by General Vera from Pitogo in December,
1944, and that after said kidnapping and killing on February 13 and 14, 1945, Mayor Ramon Isaac of Unisan,
29
was in turn kidnapped by the Hunters. Leopoldo Miciano, secretary of Col. de Luna of the Vera's Guerrilla
Party, testified that General Vera told him of his (Vera's) suspicion that Mayor Isaac was kidnapped by way of
reprisal as he, Vera, had ordered the liquidation of Lt. Lozanes (dinispatcha).

In any event, since it is an established fact that when Lozanes was kidnapped, tortured, and later killed, he
was actually a lieutenant of the Hunter's ROTC Guerrilla Organizations then engaged in the resistance
movement, it may not be said with any amount of truth that the aforesaid killing was to further the resistance
movement at the time, as the defense intimate. Rather, the killing of Lt. Lozanes of the Hunters ROTC Guerrilla
would tend to weaken commensurately the resistance movement against the Japanese invaders.

The Commission noted, however, that nowhere in the evidence of record has it been shown that defendant
Jaime Garcia had any participation in the complex crime charged. Neither does the evidence reveal that he
admitted or disclaimed any role therein. Consequently, there would be no room, either for his conviction, or
for the application of the provisions of the aforementioned amnesty proclamation.

FOR ALL THE FOREGOING CONSIDERATIONS, this Eighth Guerrilla Amnesty Commission denies the
defendants motion for reconsideration and maintains its order contained in its decisions, to return the case to
the Court of First Instance of Quezon for the latter to act on it accordingly, not only because of lack of
jurisdiction, but also because, even if it has jurisdiction, the defendants are not entitled to the benefits of the
amnesty proclamation.

From this order of the Commission, petitioners appealed to the Court of Appeals. The latter, on July 27, 1959, certified
the appeal to us, in view of the legal issue involved, namely, whether or not persons invoking the benefit of amnesty
should first admit having committed the crime of which they were accused. On August 13, 1959 we ordered the
docketing of the appeal in this court (G.R. No. L-15803). However, on petitioners' motion to return the record of the
case to the Court of Appeals (on the ground that the appeal was originally coursed to said Court, due to "factual issues
to the effect that the death of Amado Lozanes did not spring from personal motive or on account of rivalry between
guerrilla units, but owing to the fact that said decedent had aided in the war efforts of the enemy, by having been a
member of the Jap-sponsored Philippine Constabulary organization, and by having been one of those who arrested
and subsequently massacred, innocent civilians and guerrillas in Catanauan, Quezon"), we ordered the return of said
record to said Court.

On November 16, 1960, the Court of Appeals rendered a decision, affirming the Order of the Commission, stating in
part, as follows:

Appellants stressed in their aforementioned motion for reconsideration that they had impliedly admitted their
participation in the killing of Amadeo Lozanes. But mere implied admission is not sufficient, for Administrative
Order No. 144 of the Department of Justice, dated October 11, 1950, amending Administrative Order No. 179
thereof, and issued on November 17, 1949, explicitly directs that "where the offense charged against any
person is not one against chastity but is covered by the Revised Penal Code, and the offense took place
between December 8, 1941 and the date of the liberation of the province or city where the offense is alleged
to have been committed, "in order that the Amnesty Commission may take cognizance of the case, the
accused or respondent must allege or claim verbally or in writing that he committed the acts charged against
him in furtherance of the resistance movement or against persons who aided in the war efforts of the enemy',
for amnesty presupposes the commission of a crime".

xxx xxx xxx

Therefore, and since appellants did not claim verbally or in writing that they committed the offense with which
they were charged in furtherance of the resistance movement or against persons who aided in the war efforts
of the enemy, but on the contrary, as already stated, herein appellants had verbally denied the charge against
them, their case should be tried by the ordinary courts of justice. Hence, the 8th Guerrilla Amnesty Commission
could not take cognizance of their case.

30
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by
this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered
by this stipulation of facts.
1wph1.t

Appellants, however, want us to rule one way or the other, as to the factual question that the death of Amadeo
Lozanes did not spring from personal motive or on account of rivalry of guerrilla units but owing to the fact that
the said decedent had aided in the war efforts of the enemy. Without shirking from our duty to make a finding
or pronouncement on a question of fact, we are constrained not to make a pronouncement on this question,
in view of our ruling stated earlier that the Commission is not competent to take cognizance of this case, for
the reasons already stated, but it should be the ordinary courts of justice. Any ruling that we would make now
on the factual issue postulated by appellants would not only be premature and prejudicial, but also useless,
because this case proceeded from a body (the Commission) that has no jurisdiction to entertain the same. It
may be stated, in this connection, that jurisdiction could be raised at any stage of the proceedings.

WHEREFORE, the decision and order appealed from are hereby affirmed.

IT IS SO ORDERED.

Their motion for reconsideration of said decision having been denied, petitioners instituted the present petition for
review.

Petitioners contend (as they did in the Court of Appeals), that to be entitled to the benefits of Amnesty Proclamation
No. 8, dated September 7, 1946, it is not necessary for them to admit the commission of the crime charged, citing in
support of their submission the cases of Barrioquinto, et al. vs. Fernandez, et al. (L-1278, January 21, 1949, 82 Phil.
642), Provincial Fiscal of Ilocos Norte v. De los Santos, et al. (L-2502, December 1, 1949, 85 Phil. 77) and Viray v.
Amnesty Commission, et al. (L-2540, January 28, 1960, 85 Phil. 354), to the effect that "in order to entitle a person to
the benefits of Amnesty Proclamation (No. 8) of September 7, 1946, it is not necessary that he should, as a condition
precedent or sine qua non, admit having committed the criminal act or offense with which he is charged, and allege
the amnesty as a defense; it is sufficient that the evidence, either of the complainant or the accused, shows that the
offense committed comes within the terms of said Amnesty Proclamation."

But said cases have been superseded and deemed overruled by the subsequent cases of People v. Llanita, et al.(L-
2082, April 26, 1950, 86 Phil. 219) and People v. Guillermo, et al. (L-2188, May 18, 1950, 86 Phil. 395), wherein we
held that

It is rank inconsistency for appellant to justify an act, or seek forgiveness for an act which, according to him,
he has not committed. Amnesty presupposes the commission of a crime, and when an accused maintains
that he has not committed a crime, he cannot have any use for amnesty. Where an amnesty proclamation
imposes certain conditions, as in this case, it is incumbent upon the accused to prove the existence of such
conditions. The invocation of amnesty is in the nature of a plea of confession and avoidance, which means
that the pleader admits the allegations against him but disclaims liability therefor on account of intervening
facts which, if proved, would being the crime charged uithin the scope of the amnesty proclamation. (Emphasis
supplied)

At any rate, the facts established before the Commission do not bring this case within the terms of Amnesty
Proclamation No. 8. Note that said proclamation extends its provisions to "all persons who committed any act
penalized under the Revised Penal Code in furtherance of the resistance to the enemy or against persons aiding in
the war effort of the enemy." As found by the Commission, the killing of the deceased (Lozaes) was not in furtherance
of the resistance movement, but was due to the rivalry between the Hunter's Guerrilla, to which he belonged, and the
Vera's Guerrilla of petitioners.

Neither may petitioners rely on the case of Buyco v. People, et al. (L-6327, July 29, 1954) because in said case, we
held that petitioner was not entitled to the benefits of the Amnesty Proclamation not only because "the evidence did
31
not suffice to show that appellant had acted in the manner contemplated in the amnesty proclamation," namely, that
he killed the deceased Luis Gonzales due to his being an enemy collaborator, but also because if petitioner's version
was true that he had no participation whatsoever in the killing of the deceased, then he "had committed no crime
whatsoever, and, hence, there would be no room, either for his conviction or for the application of the provisions of
the aforementioned amnesty application," which, in effect, reiterates our previous ruling in
the Llanitaand Guillermo cases, supra, that amnesty cannot be invoked, where the accused actually denies the
commission of the offense charged.

We find no merit in petitioner's claim that the Court of Appeals erred in applying or citing Department of Justice
Administrative Order No. 144, series of 1950,1 considering that the latter was issued precisely pursuant to our ruling
in the aforesaid Llanita and Guillermo cases.

Petitioners also argue that the Court of Appeals erred in declining to resolve the factual issues they had raised before
it. The argument is untenable, because as the appellate court correctly pointed out, any ruling that it would make on
the factual issues presented by petitioners "would not only be premature and prejudicial, but also useless, because
this case proceeded from a body (the Commission) that had no jurisdiction to entertain the same."

WHEREFORE, finding no error in the decision of the Court of Appeals sought to be reviewed, the same is hereby
affirmed, with costs against the petitioners. So ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Dizon, Regala and Makalintal, JJ.,
concur.

32
EN BANC

SPOUSES RENATO G.R. No. 106064


CONSTANTINO, JR. and
LOURDES CONSTANTINO Present:
and their minor children
RENATO REDENTOR, DAVIDE, JR., CJ.,
ANNA MARIKA LISSA, PUNO,
NINA ELISSA, and PANGANIBAN,
ANNA KARMINA, QUISUMBING,
FREEDOM FROM DEBT YNARES-SANTIAGO,
COALITION, and FILOMENO SANDOVAL-GUTIERREZ,
STA. ANA III, CARPIO,
Petitioners , AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
CALLEJO, SR.,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.
HON. JOSE B. CUISIA,
in his capacity as Governor
of the Central Bank,
HON. RAMON DEL ROSARIO,
in his capacity as Secretary
of Finance, HON. EMMANUEL V.
PELAEZ, in his capacity as
Philippine Debt Negotiating
Chairman, and the NATIONAL Promulgated:
TREASURER,
Respondents. October 13, 2005
x-------------------------------------------------------------------x

DECISION

TINGA, J.:

33
The quagmire that is the foreign debt problem has especially confounded
developing nations around the world for decades. It has defied easy solutions
acceptable both to debtor countries and their creditors. It has also emerged
as cause celebre for various political movements and grassroots activists and
the wellspring of much scholarly thought and debate.

The present petition illustrates some of the ideological and functional


differences between experts on how to achieve debt relief. However, this being a
court of law, not an academic forum or a convention on development economics,
our resolution has to hinge on the presented legal issues which center on the
appreciation of the constitutional provision that empowers the President to
contract and guarantee foreign loans. The ultimate choice is between a
restrictive reading of the constitutional provision and an alimentative
application thereof consistent with time-honored principles on executive power
and the alter ego doctrine.

This Petition for Certiorari, Prohibition and Mandamus assails said


contracts which were entered into pursuant to the Philippine Comprehensive
Financing Program for 1992 (Financing Program or Program). It seeks to enjoin
respondents from executing additional debt-relief contracts pursuant thereto.
It also urges the Court to issue an order compelling the Secretary of Justice to
institute criminal and administrative cases against respondents for acts which
circumvent or negate the provisions Art. XII of the Constitution.[1]

Parties and Facts

The petition was filed on 17 July 1992 by petitioners spouses Renato


Constantino, Jr. and Lourdes Constantino and their minor children, Renato
Redentor, Anna Marika Lissa, Nina Elissa, and Anna Karmina, Filomeno Sta.
Ana III, and the Freedom from Debt Coalition, a non-stock, non-profit, non-
government organization that advocates a pro-people and just Philippine debt

34
policy.[2] Named respondents were the then Governor of the Bangko Sentral ng
Pilipinas, the Secretary of Finance, the National Treasurer, and the Philippine
Debt Negotiation Chairman Emmanuel V. Pelaez.[3] All respondents were
members of the Philippine panel tasked to negotiate with the countrys foreign
creditors pursuant to the Financing Program.

The operative facts are sparse and there is little need to elaborate on them.

The Financing Program was the culmination of efforts that began during
the term of former President Corazon Aquino to manage the countrys external
debt problem through a negotiation-oriented debt strategy involving cooperation
and negotiation with foreign creditors.[4]Pursuant to this strategy, the Aquino
government entered into three restructuring agreements with representatives of
foreign creditor governments during the period of 1986 to 1991.[5] During the
same period, three similarly-oriented restructuring agreements were executed
with commercial bank creditors.[6]

On 28 February 1992, the Philippine Debt Negotiating Team, chaired by


respondent Pelaez, negotiated an agreement with the countrys Bank Advisory
Committee, representing all foreign commercial bank creditors, on the
Financing Program which respondents characterized as a multi-option
financing

package.[7] The Program was scheduled to be executed on 24 July 1992 by


respondents in behalf of the Republic. Nonetheless, petitioners alleged that even
prior to the execution of the Program respondents had already implemented its
buyback component when on 15 May 1992, the Philippines bought back P1.26
billion of external debts pursuant to the Program.[8]
35
The petition sought to enjoin the ratification of the Program, but the Court
did not issue any injunctive relief. Hence, it came to pass that the Program was
signed in London as scheduled. The petition still has to be resolved though as
petitioners seek the annulment of
any and all acts done by respondents, their subordinates and any other public
officer pursuant to the agreement and program in question.[9] Even after the
signing of the Program, respondents themselves acknowledged that the
remaining principal objective of the petition is to set aside respondents
actions.[10]

Petitioners characterize the Financing Program as a package offered to the


countrys foreign creditors consisting of two debt-relief options.[11]The first option
was a cash buyback of portions of the Philippine foreign debt at a
discount.[12] The second option allowed creditors to convert existing Philippine
debt instruments into any of three kinds of bonds/securities: (1) new money
bonds with a five-year grace period and 17 years final maturity, the purchase
of which would allow the creditors to convert their eligible debt papers into
bearer bonds with the same terms; (2) interest-reduction bonds with a maturity
of 25 years; and (3) principal-collateralized interest-reduction bonds with a
maturity of 25 years.[13]

On the other hand, according to respondents the Financing Program would


cover about U.S. $5.3 billion of foreign commercial debts and it was expected to
deal comprehensively with the commercial bank debt problem of the country
and pave the way for the countrys access to capital markets.[14] They add that
the Program carried three basic options from which foreign bank lenders could
choose, namely: to lend money, to exchange existing restructured Philippine
debts with an interest reduction bond; or to exchange the same Philippine debts
with a principal collateralized interest reduction bond.[15]

Issues for Resolution


36
Petitioners raise several issues before this Court.

First, they object to the debt-relief contracts entered into pursuant to the
Financing Program as beyond the powers granted to the President under
Section 20,
Article VII of the Constitution.[16] The provision states that the President may
contract or guarantee foreign loans in behalf of the Republic. It is claimed that
the buyback and securitization/bond conversion schemes are neither loans nor
guarantees, and hence beyond the power of the President to execute.

Second, according to petitioners even assuming that the contracts under


the Financing Program are constitutionally permissible, yet it is only the
President who may exercise the power to enter into these contracts and such
power may not be delegated to respondents.

Third, petitioners argue that the Financing Program violates several


constitutional policies and that contracts executed or to be executed pursuant
thereto were or will be done by respondents with grave abuse of discretion
amounting to lack or excess of jurisdiction.

Petitioners contend that the Financing Program was made available for
debts that were either fraudulently contracted or void. In this regard, petitioners
rely on a 1992 Commission on Audit (COA) report which identified several
behest loans as either contracted or guaranteed fraudulently during the Marcos
regime.[17] They posit that since these and other similar debts, such as the ones
pertaining to the Bataan Nuclear Power Plant,[18] were eligible for buyback or
conversion under the Program, the resultant relief agreements pertaining
thereto would be void for being waivers of the Republics right to repudiate the
void or fraudulently contracted loans.

37
For their part, respondents dispute the points raised by petitioners. They also
question the standing of petitioners to institute the present petition and the
justiciability of the issues presented.

The Court shall tackle the procedural questions ahead of the substantive issues.

The Courts Rulings

Standing of Petitioners

The individual petitioners are suing as citizens of the Philippines; those


among them who are of age are suing in their additional capacity as
taxpayers.[19] It is not indicated in what capacity the Freedom from Debt
Coalition is suing.

Respondents point out that petitioners have no standing to file the present
suit since the rule allowing taxpayers to assail executive or legislative acts has
been applied only to cases where the constitutionality of a statute is involved.
At the same time, however, they urge this Court to exercise its wide discretion
and waive petitioners lack of standing. They invoke the transcendental
importance of resolving the validity of the questioned debt-relief contracts and
others of similar import.

The recent trend on locus standi has veered towards a liberal treatment in
taxpayers suits. In Tatad v. Garcia Jr.,[20] this Court reiterated that the
prevailing doctrines in taxpayers suits are to allow taxpayers to question
contracts entered into by the national government or government owned and
controlled corporations allegedly in contravention of law.[21] A taxpayer is
allowed to sue where there is a claim that public funds are illegally disbursed,
or that public money is being deflected to any improper purpose, or that there

38
is a wastage of public funds through the enforcement of an invalid or
unconstitutional law.[22]

Moreover, a ruling on the issues of this case will not only determine the
validity or invalidity of the subject pre-termination and bond-conversion of
foreign debts but also create a precedent for other debts or debt-related
contracts executed or to be executed in behalf of the President of the Philippines
by the Secretary of Finance. Considering the reported Philippine debt of P3.80
trillion as of November 2004, the foreign public borrowing component of which
reached P1.81 trillion in November, equivalent to 47.6% of total government
borrowings,[23] the importance of the issues raised and the magnitude of the
public interest involved are indubitable.

Thus, the Courts cognizance of this petition is also based on the


consideration that the determination of the issues presented will have a
bearing on the state of the countrys economy, its international financial ratings,
and perhaps even the Filipinos way of life. Seen in this light, the transcendental
importance of the issues herein presented cannot be doubted.

Where constitutional issues are properly raised in the context of alleged


facts, procedural questions acquire a relatively minor significance.[24] We thus
hold that by the very nature of the power wielded by the President, the effect of
using this power on the economy, and the well-being in general of the Filipino
nation, the Court must set aside the procedural barrier of standing and rule on
the justiciable issues presented by the parties.

Ripeness/Actual Case Dimension

Even as respondents concede the transcendental importance of the issues


at bar, in their Rejoinder they ask this Court to dismiss the Petition. Allegedly,
petitioners arguments are mere attempts at abstraction.[25] Respondents are

39
correct to some degree. Several issues, as shall be discussed in due course, are
not ripe for adjudication.

The allegation that respondents waived the Philippines right to repudiate


void and fraudulently contracted loans by executing the debt-relief agreements
is, on many levels, not justiciable.

In the first place, records do not show whether the so-called behest loansor
other allegedly void or fraudulently contracted loans for that matterwere subject
of the debt-relief contracts entered into under the Financing Program.

Moreover, asserting a right to repudiate void or fraudulently contracted


loans begs the question of whether indeed particular loans are void or
fraudulently contracted. Fraudulently contracted loans are voidable and, as
such, valid and enforceable until annulled by the courts. On the other hand,
void contracts that have already been fulfilled must be declared void in view of
the maxim that no one is allowed to take the law in his own hands.[26] Petitioners
theory depends on a prior annulment or declaration of nullity of the pre-existing
loans, which thus far have not been submitted to this Court. Additionally, void
contracts are unratifiable by their very nature; they are null and void ab initio.
Consequently, from the viewpoint of civil law, what petitioners present as the
Republics right to repudiate is yet a contingent right, one which cannot be
allowed as an anticipatory basis for annulling the debt-relief contracts.
Petitioners contention that the debt-relief agreements are tantamount to
waivers of the Republics right to repudiate so-called behest loans is without
legal foundation.

It may not be amiss to recognize that there are many advocates of the
position that the Republic should renege on obligations that are considered as
illegitimate. However, should the executive branch unilaterally, and possibly
even without prior court determination of the validity or invalidity of these
contracts, repudiate or otherwise declare to the international community its
40
resolve not to recognize a certain set of illegitimate loans, adverse
repercussions[27] would come into play. Dr. Felipe Medalla, former Director
General of the National Economic Development Authority, has warned, thus:

One way to reduce debt service is to repudiate debts, totally or selectively.


Taken to its limit, however, such a strategy would put the Philippines at such
odds with too many enemies. Foreign commercial banks by themselves and
without the cooperation of creditor governments, especially the United States,
may not be in a position to inflict much damage, but concerted sanctions from
commercial banks, multilateral financial institutions and creditor governments
would affect not only our sources of credit but also our access to markets for our
exports and the level of development assistance. . . . [T]he country might face
concerted sanctions even if debts were repudiated only selectively.

The point that must be stressed is that repudiation is not an attractive


alternative if net payments to creditors in the short and medium-run can be
reduced through an agreement (as opposed to a unilaterally set ceiling on debt
service payments) which provides for both rescheduling of principal and
capitalization of interest, or its equivalent in new loans, which would make it
easier for the country to pay interest.[28]

Sovereign default is not new to the Philippine setting. In October 1983, the
Philippines declared a moratorium on principal payments on its external debts
that eventually

lasted four years,[29] that virtually closed the countrys access to new foreign
money[30] and drove investors to leave the Philippine market, resulting in some
devastating consequences.[31] It would appear then that this beguilingly
attractive and dangerously simplistic solution deserves the utmost circumspect
cogitation before it is resorted to.

In any event, the discretion on the matter lies not with the courts but with
the executive. Thus, the Program was conceptualized as an offshoot of the
decision made by then

41
President Aquino that the Philippines should recognize its sovereign
debts[32] despite the controversy that engulfed many debts incurred during the
Marcos era. It is a scheme whereby the Philippines restructured its debts
following a negotiated approach instead of a default approach to manage the
bleak Philippine debt situation.

As a final point, petitioners have no real basis to fret over a possible waiver
of the right to repudiate void contracts. Even assuming that spurious loans had
become the subject of debt-relief contracts, respondents unequivocally assert
that the Republic did not waive any right to repudiate void or fraudulently
contracted loans, it having incorporated a no-waiver clause in the
agreements.[33]

Substantive Issues

It is helpful to put the matter in perspective before moving on to the merits. The
Financing Program extinguished portions of the countrys pre-existing loans

through either debt buyback or bond-conversion. The buyback approach


essentially pre-terminated portions of public debts while the bond-conversion
scheme extinguished public debts through the obtention of a new loan by virtue
of a sovereign bond issuance, the proceeds of which in turn were used for
terminating the original loan.

First Issue: The Scope of Section 20, Article VII

For their first constitutional argument, petitioners submit that the


buyback and bond-conversion schemes do not constitute the loan contract or
guarantee contemplated in the Constitution and are consequently prohibited.
Sec. 20, Art. VII of the Constitution provides, viz:
42
The President may contract or guarantee foreign loans in behalf of the
Republic of the Philippines with the prior concurrence of the Monetary Board
and subject to such limitations as may be provided under law. The Monetary
Board shall, within thirty days from the end of every quarter of the calendar year,
submit to the Congress a complete report of its decisions on applications for
loans to be contracted or guaranteed by the government or government-owned
and controlled corporations which would have the effect of increasing the foreign
debt, and containing other matters as may be provided by law.

On Bond-conversion

Loans are transactions wherein the owner of a property allows another


party to use the property and where customarily, the latter promises to return
the property after a specified period with payment for its use, called
interest.[34] On the other hand, bonds are interest-bearing or discounted
government or corporate securities that obligate the issuer to pay the
bondholder a specified sum of money, usually at specific intervals, and to repay
the principal amount of the loan at maturity.[35] The word bond means contract,
agreement, or guarantee. All of these terms are applicable to the securities
known as bonds. An investor who purchases a bond is lending money to the
issuer, and the bond represents the issuers contractual promise to pay interest
and repay principal according to specific terms. A short-term bond is often
called a note.[36]

The language of the Constitution is simple and clear as it is broad. It allows


the President to contract and guarantee foreign loans. It makes no prohibition
on the issuance of certain kinds of loans or distinctions as to which kinds of
debt instruments are more onerous than others. This Court may not ascribe to
the Constitution meanings and restrictions that would unduly burden the
powers of the President. The plain, clear and unambiguous language of the
43
Constitution should be construed in a sense that will allow the full exercise of
the power provided therein. It would be the worst kind of judicial legislation if
the courts were to misconstrue and change the meaning of the organic act.
The only restriction that the Constitution provides, aside from the prior
concurrence of the Monetary Board, is that the loans must be subject to
limitations provided by law. In this regard, we note that Republic Act (R.A.) No.
245 as amended by Pres. Decree (P.D.) No. 142, s. 1973, entitled An Act
Authorizing the Secretary of Finance to Borrow to Meet Public Expenditures
Authorized by Law, and for Other Purposes, allows foreign loans to be contracted
in the form of, inter alia, bonds. Thus:

Sec. 1. In order to meet public expenditures authorized by law or to provide for


the purchase, redemption, or refunding of any obligations, either direct or
guaranteed of the Philippine Government, the Secretary of Finance, with the
approval of the President of the Philippines, after consultation with the
Monetary Board, is authorized to borrow from time to time on the credit of
the Republic of the Philippines such sum or sums as in his judgment may
be necessary, and to issue therefor evidences of indebtedness of the
Philippine Government."
Such evidences of indebtedness may be of the following types:

....

c. Treasury bonds, notes, securities or other evidences of indebtedness


having maturities of one year or more but not exceeding twenty-five years
from the date of issue. (Emphasis supplied.)

Under the foregoing provisions, sovereign bonds may be issued not only to
supplement government expenditures but also to provide for the
purchase,[37] redemption,[38] or refunding[39] of any obligation, either direct or
guaranteed, of the Philippine Government.

Petitioners, however, point out that a supposed difference between


contracting a loan and issuing bonds is that the former creates a definite
creditor-debtor relationship between the parties while the latter does
44
not.[40] They explain that a contract of loan enables the debtor to restructure or
novate the loan, which benefit is lost upon the conversion of the debts to bearer
bonds such that the Philippines surrenders the novatable character of a loan
contract for the irrevocable and unpostponable demandability of a bearer
bond.[41] Allegedly, the Constitution prohibits the President from issuing bonds
which are far more onerous than loans.[42]

This line of thinking is flawed to say the least. The negotiable character of
the subject bonds is not mutually exclusive with the Republics freedom to
negotiate with bondholders for the revision of the terms of the debt. Moreover,
the securities market provides some flexibilityif the Philippines wants to pay in
advance, it can buy out its bonds in the market; if interest rates go down but
the Philippines does not have money to retire the bonds, it can replace the old
bonds with new ones; if it defaults on the bonds, the bondholders shall organize
and bring about a re-negotiation or settlement.[43] In fact, several countries have
restructured their sovereign bonds in view either of

inability and/or unwillingness to pay the indebtedness.[44] Petitioners have not


presented a plausible reason that would preclude the Philippines from acting in
a similar fashion, should it so opt.

This theory may even be dismissed in a perfunctory manner since


petitioners are merely expecting that the Philippines would opt to restructure
the bonds but with the negotiable character of the bonds, would be prevented
from so doing. This is a contingency which petitioners do not assert as having
come to pass or even imminent. Consummated acts of the executive cannot be
struck down by this Court merely on the basis of petitioners anticipatory cavils.

On the Buyback Scheme


45
In their Comment, petitioners assert that the power to pay public debts lies
with Congress and was deliberately

withheld by the Constitution from the President.[45] It is true that in the balance
of power between the three branches of government, it is Congress that manages
the countrys coffers by virtue of its taxing and spending powers. However, the
law-making authority has promulgated a law ordaining an automatic
appropriations provision for debt servicing[46] by virtue of which the President is
empowered to execute debt payments without the need for further
appropriations. Regarding these legislative enactments, this Court has held, viz:

Congress deliberates or acts on the budget proposals of the President, and


Congress in the exercise of its own judgment and wisdom formulates an
appropriation act precisely following the process established by the Constitution,
which specifies that no money may be paid from the Treasury except in
accordance with an appropriation made by law.

Debt service is not included in the General Appropriation Act, since


authorization therefor already exists under RA Nos. 4860 and 245, as amended,
and PD 1967. Precisely in the light of this subsisting authorization as embodied
in said Republic Acts and PD for debt service, Congress does not concern itself
with details for implementation by the Executive, but largely with annual levels
and approval thereof upon due deliberations as part of the whole obligation
program for the year. Upon such approval, Congress has spoken and cannot be
said to have delegated its wisdom to the Executive, on whose part lies the
implementation or execution of the legislative wisdom.[47]

Specific legal authority for the buyback of loans is established under Section 2
of Republic Act (R.A.) No. 240, viz:

Sec. 2. The Secretary of Finance shall cause to be paid out of any


moneys in the National Treasury not otherwise appropriated, or from
any sinking funds provided for the purpose by law, any interest falling
due, or accruing, on any portion of the public debt authorized by law.
He shall also cause to be paid out of any such money, or from any
46
such sinking funds the principal amount of any obligations which
have matured, or which have been called for redemption or for which
redemption has been demanded in accordance with terms prescribed by
him prior to date of issue: Provided, however, That he may, if he so chooses
and if the holder is willing, exchange any such obligation with any other
direct or guaranteed obligation or obligations of the Philippine Government
of equivalent value. In the case of interest-bearing obligations, he shall pay
not less than their face value; in the case of obligations issued at a
discount he shall pay the face value at maturity; or, if redeemed prior to
maturity, such portion of the face value as is prescribed by the terms
and conditions under which such obligations were originally
issued. (Emphasis supplied.)

The afore-quoted provisions of law specifically allow the President to pre-


terminate debts without further action from Congress.

Petitioners claim that the buyback scheme is neither a guarantee nor a


loan since its underlying intent is to extinguish debts that are not yet due and
demandable.[48] Thus, they suggest that contracts entered pursuant to the
buyback scheme are unconstitutional for not being among those contemplated
in Sec. 20, Art. VII of the Constitution.

Buyback is a necessary power which springs from the grant of the foreign
borrowing power. Every statute is understood, by implication, to contain all
such provisions as may be necessary to effectuate its object and purpose, or to
make effective rights, powers, privileges or jurisdiction which it grants,
including all such collateral and subsidiary consequences as may be fairly and
logically inferred from its terms.[49] The President is not empowered to borrow
money from foreign banks and governments on the credit of the Republic only
to be left bereft of authority to implement the payment despite appropriations
therefor.

47
Even petitioners concede that [t]he Constitution, as a rule, does not
enumeratelet alone enumerate allthe acts which the President (or any other
public officer) may not

do,[50] and [t]he fact that the Constitution does not explicitly bar the President
from exercising a power does not mean that he or she does not have that
power.[51] It is inescapable from the standpoint of reason and necessity that the
authority to contract foreign loans and guarantees without restrictions on
payment or manner thereof coupled with the availability of the corresponding
appropriations, must include the power to effect payments or to make payments
unavailing by either restructuring the loans or even refusing to make any
payment altogether.

More fundamentally, when taken in the context of sovereign debts, a


buyback is simply the purchase by the sovereign issuer of its own debts at a
discount. Clearly then, the objection to the validity of the buyback scheme is
without basis.

Second Issue: Delegation of Power

Petitioners stress that unlike other powers which may be validly delegated
by the President, the power to incur foreign debts is expressly reserved by the
Constitution in the person of the President. They argue that the gravity by which
the exercise of the power will affect the Filipino nation requires that the
President alone must exercise this power. They submit that the requirement of
prior concurrence of an entity specifically named by the Constitutionthe
Monetary Boardreinforces the submission that not respondents but the
President alone and personally can validly bind the country.

48
Petitioners position is negated both by explicit constitutional[52] and
legal[53] imprimaturs, as well as the doctrine of qualified political agency.

The evident exigency of having the Secretary of Finance implement the


decision of the President to execute the debt-relief contracts is made manifest
by the fact that the process of establishing and executing a strategy for
managing the governments debt is deep within the realm of the expertise of the
Department of Finance, primed as it is to raise the required amount of funding,
achieve its risk and cost objectives, and meet any other sovereign debt
management goals.[54]

If, as petitioners would have it, the President were to personally exercise
every aspect of the foreign borrowing power, he/she would have to pause from
running the country long enough to focus on a welter of time-consuming
detailed activitiesthe propriety of incurring/guaranteeing loans, studying and
choosing among the many methods that may be taken toward this end, meeting
countless times with creditor representatives to negotiate, obtaining the
concurrence of the Monetary Board, explaining and defending the negotiated
deal to the public, and more often than not, flying to the agreed place of
execution to sign the documents. This sort of constitutional interpretation
would negate the very existence of cabinet positions and the respective expertise
which the holders thereof are accorded and would unduly hamper the
Presidents effectivity in running the government.

Necessity thus gave birth to the doctrine of qualified political agency, later
adopted in Villena v. Secretary of the Interior[55] from American
jurisprudence, viz:

With reference to the Executive Department of the government, there is one


purpose which is crystal-clear and is readily visible without the projection of
judicial searchlight, and that is the establishment of a single, not plural,
Executive. The first section of Article VII of the Constitution, dealing with the
Executive Department, begins with the enunciation of the principle that "The
executive power shall be vested in a President of the Philippines." This means
49
that the President of the Philippines is the Executive of the Government of
the Philippines, and no other. The heads of the executive departments occupy
political positions and hold office in an advisory capacity, and, in the language
of Thomas Jefferson, "should be of the President's bosom confidence" (7 Writings,
Ford ed., 498), and, in the language of Attorney-General Cushing (7 Op.,
Attorney-General, 453), "are subject to the direction of the President." Without
minimizing the importance of the heads of the various departments, their
personality is in reality but the projection of that of the President. Stated
otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme
Court of the United States, "each head of a department is, and must be, the
President's alter ego in the matters of that department where the President is
required by law to exercise authority" (Myers vs. United States, 47 Sup. Ct. Rep.,
21 at 30; 272 U. S., 52 at 133; 71 Law. ed., 160).[56]

As it was, the backdrop consisted of a major policy determination made by


then President Aquino that sovereign debts have to be respected and the
concomitant reality that the Philippines did not have enough funds to pay the
debts. Inevitably, it fell upon the Secretary of Finance, as the alter ego of the
President regarding the sound and efficient management of the financial
resources of the Government,[57] to formulate a scheme for the implementation
of the policy publicly expressed by the President herself.

Nevertheless, there are powers vested in the President by the Constitution


which may not be delegated to or exercised by an agent or alter ego of the
President. Justice Laurel, in his ponencia in Villena, makes this clear:

Withal, at first blush, the argument of ratification may seem plausible under the
circumstances, it should be observed that there are certain acts which, by their
very nature, cannot be validated by subsequent approval or ratification by the
President. There are certain constitutional powers and prerogatives of the Chief
Executive of the Nation which must be exercised by him in person and no
amount of approval or ratification will validate the exercise of any of those powers
by any other person. Such, for instance, in his power to suspend the writ of
habeas corpus and proclaim martial law (PAR. 3, SEC. 11, Art. VII) and the
exercise by him of the benign prerogative of mercy (par. 6, sec. 11, idem).[58]

These distinctions hold true to this day. There are certain presidential powers
which arise out of exceptional circumstances, and if exercised, would involve
50
the suspension of fundamental freedoms, or at least call for the supersedence
of executive prerogatives over those exercised by co-equal branches of
government. The declaration of martial law, the suspension of the writ of habeas
corpus, and the exercise of the pardoning power notwithstanding the judicial
determination of guilt of the accused, all fall within this special class that
demands the exclusive exercise by the President of the constitutionally vested
power. The list is by no means exclusive, but there must be a showing that the
executive power in question is of similar gravitas and exceptional import.

We cannot conclude that the power of the President to contract or


guarantee foreign debts falls within the same exceptional class. Indubitably, the
decision to contract or guarantee foreign debts is of vital public interest, but
only

akin to any contractual obligation undertaken by the sovereign, which arises


not from any extraordinary incident, but from the established functions of
governance.

Another important qualification must be made. The Secretary of Finance


or any designated alter ego of the President is bound to secure the latters prior
consent to or subsequent ratification of his acts. In the matter of contracting or
guaranteeing foreign loans, the repudiation by the President of the very acts
performed in this regard by the alter ego will definitely have binding effect. Had
petitioners herein succeeded in demonstrating that the President actually
withheld approval and/or repudiated the Financing Program, there could be a
cause of action to nullify the acts of respondents. Notably though, petitioners
do not assert that respondents pursued the Program without prior
authorization of the President or that the terms of the contract were agreed
upon without the Presidents authorization. Congruent with the avowed
51
preference of then President Aquino to honor and restructure existing foreign
debts, the lack of showing that she countermanded the acts of respondents
leads us to conclude that said acts carried presidential approval.

With constitutional parameters already established, we may also note, as


a source of suppletory guidance, the provisions of R.A. No. 245. The afore-
quoted Section 1 thereof empowers the Secretary of Finance with the approval
of the President and after consultation[59] of the Monetary Board, to borrow from
time to time on the credit of the Republic of the Philippines such sum or sums
as in his judgment may be necessary, and to issue therefor evidences of
indebtedness of the Philippine Government. Ineluctably then, while the
President wields the borrowing power it is the Secretary of Finance who
normally carries out its thrusts.

In our recent rulings in Southern Cross Cement Corporation v. The


Philippine Cement Manufacturers Corp.,[60] this Court had occasion to examine
the authority granted by Congress to the Department of Trade and Industry
(DTI) Secretary to impose safeguard measures pursuant to the Safeguard
Measures Act. In doing so, the Court was impelled to construe Section 28(2),
Article VI of the Constitution, which allowed Congress, by law, to authorize the
President to fix within specified limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework of the
national development program of the Government.[61]

While the Court refused to uphold the broad construction of the grant of
power as preferred by the DTI Secretary, it nonetheless tacitly acknowledged
52
that Congress could designate the DTI Secretary, in his capacity as alter ego of
the President, to exercise the authority vested on the chief executive under
Section 28(2), Article VI.[62] At the same time, the Court emphasized that since
Section 28(2), Article VI authorized Congress to impose limitations and
restrictions on the authority of the President to impose tariffs and imposts, the
DTI Secretary was necessarily subjected to the same restrictions that Congress
could impose on the President in the exercise of this taxing power.

Similarly, in the instant case, the Constitution allocates to the President


the exercise of the foreign borrowing power subject to such limitations as may
be provided under law. Following Southern Cross, but in line with the limitations
as defined in Villena, the presidential prerogative may be exercised by the
Presidents alter ego, who in this case is the Secretary of Finance.

It bears emphasis that apart from the Constitution, there is also a relevant
statute, R.A. No. 245, that establishes the parameters by which the alter
ego may act in behalf of the President with respect to the borrowing power. This
law expressly provides that the Secretary of Finance may enter into foreign
borrowing contracts. This law neither amends nor goes contrary to the
Constitution but merely implements the subject provision in a manner
consistent with the structure of the Executive Department and the alter
ego doctine. In this regard, respondents have declared that they have followed
the restrictions provided under R.A. No. 245,[63] which include the requisite
presidential authorization and which, in the absence of proof and even
allegation to the contrary, should be regarded in a fashion congruent with the
presumption of regularity bestowed on acts done by public officials.

Moreover, in praying that the acts of the respondents, especially that of


the Secretary of Finance, be nullified as being in violation of a restrictive
constitutional interpretation, petitioners in effect would have this Court declare
R.A. No. 245 unconstitutional. We will not strike
53
down a law or provisions thereof without so much as a direct attack thereon
when simple and logical statutory construction would suffice.

Petitioners also submit that the unrestricted character of the Financing


Program violates the framers intent behind Section 20, Article VII to restrict the
power of the President. This intent, petitioners note, is embodied in the proviso
in Sec. 20, Art. VII, which states that said power is subject to such limitations
as may be provided under law. However, as previously discussed, the debt-relief
contracts are governed by the terms of R.A. No. 245, as amended by P.D. No.
142 s. 1973, and therefore were not developed in an unrestricted setting.

Third Issue: Grave Abuse of Discretion and


Violation of Constitutional Policies

We treat the remaining issues jointly, for in view of the foregoing determination,
the general allegation of grave abuse of discretion on the part of respondents
would arise from the purported violation of various state policies as expressed
in the Constitution.

Petitioners allege that the Financing Program violates the constitutional state
policies to promote a social order that will ensure the prosperity and
independence of the nation and free the people from poverty,[64] foster social
justice in all phases of national development,[65] and develop a self-reliant and
independent national economy effectively controlled by Filipinos;[66] thus, the
contracts executed or to be executed pursuant thereto were or would be tainted
by a grave abuse of discretion amounting to lack or excess of jurisdiction.

54
Respondents cite the following in support of the propriety of their acts:[67] (1) a
Department of Finance study showing that as a result of the implementation of
voluntary debt reductions schemes, the countrys debt stock was reduced by
U.S. $4.4 billion as of December 1991;[68] (2) revelations made by independent
individuals made in a hearing before the Senate Committee on Economic Affairs
indicating that the assailed agreements would bring about substantial benefits
to the country;[69] and (3) the Joint Legislative-Executive Foreign Debt Councils
endorsement of the approval of the financing package containing the debt-

relief agreements and issuance of a Motion to Urge the Philippine Debt


Negotiating Panel to continue with the negotiation on the aforesaid package.[70]

Even with these justifications, respondents aver that their acts are within the
arena of political questions which, based on the doctrine of separation of
powers,[71] the judiciary must leave without interference lest the courts
substitute their judgment for that of the official concerned and decide a matter
which by its nature or law is for the latter alone to decide.[72]

On the other hand, in furtherance of their argument on respondents violation


of constitutional policies, petitioners cite an article of Jude Esguerra, The 1992
Buyback and Securitization Agreement with Philippine Commercial Bank
Creditors,[73] in illustrating a best-case scenario in entering the subject debt-
relief agreements. The computation results in a yield of $218.99 million, rather

than the $2,041.00 million claimed by the debt negotiators.[74] On the other
hand, the worst-case scenario allegedly is that a net amount of $1.638 million
will flow out of the country as a result of the debt package.[75]

55
Assuming the accuracy of the foregoing for the nonce, despite the watered-down
parameters of petitioners computations, we can make no conclusion other than
that respondents efforts were geared towards debt-relief with marked positive
results and towards achieving the constitutional policies which petitioners so
hastily declare as having been violated by respondents. We recognize that as
with other schemes dependent on volatile market and economic structures, the
contracts entered into by respondents may possibly have a net outflow and
therefore negative result. However, even petitioners call this latter event the
worst-case scenario. Plans are seldom foolproof. To ask the Court to strike down
debt-relief contracts, which, according to independent third party evaluations
using historically-suggested rates would result in substantial debt-
relief,[76] based merely on the possibility of petitioners worst-case scenario
projection, hardly seems reasonable.

Moreover, the policies set by the Constitution as litanized by petitioners are not
a panacea that can annul every governmental act sought to be struck down.
The gist of petitioners arguments on violation of constitutional policies and
grave abuse of discretion boils down to their allegation that the debt-relief
agreements entered into by respondents do not deliver the kind of debt-relief
that petitioners would want. Petitioners cite the aforementioned article in
stating that that the agreement achieves little that cannot be gained through
less complicated means like postponing (rescheduling) principal
payments,[77] thus:

[T]he price of success in putting together this debt-relief package (indicates) the
possibility that a simple rescheduling agreement may well turn out to be less
expensive than this comprehensive debt-relief package. This means that in the
next six years the humble and simple rescheduling process may well be the
lesser evil because there is that distinct possibility that less money will flow out
of the country as a result.

56
Note must be taken that from these citations, petitioners submit that there
is possibly a better way to go about debt rescheduling and, on that basis, insist
that the acts of respondents must be struck down. These are rather tenuous
grounds to condemn the subject agreements as violative of constitutional
principles.

Conclusion

The raison d etre of the Financing Program is to manage debts incurred by


the Philippines in a manner that will lessen the burden on the Filipino
taxpayersthus the term debt-relief agreements. The measures objected to by
petitioners were not aimed at incurring more debts but at terminating pre-
existing debts and were backed by the know-how of the countrys economic
managers as affirmed by third party empirical analysis.

That the means employed to achieve the goal of debt-relief do not sit well
with petitioners is beyond the power of this Court to remedy. The exercise of the
power of judicial review is merely to checknot supplantthe Executive, or to
simply ascertain whether he has gone beyond the constitutional limits of his
jurisdiction but not to exercise the power vested in him or to determine the
wisdom of his act.[78] In cases where the main purpose is to nullify governmental
acts whether as unconstitutional or done with grave abuse of discretion, there
is a strong presumption in favor of the validity of the assailed acts. The heavy
onus is in on petitioners to overcome the presumption of regularity.

We find that petitioners have not sufficiently established any basis for the
Court to declare the acts of respondents as unconstitutional.

WHEREFORE the petition is hereby DISMISSED. No costs.

57
SO ORDERED.

58
EN BANC

G.R. No. 138570 October 10, 2000

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

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

G.R. No. 138572 October 10, 2000

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


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

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

G.R. No. 138587 October 10, 2000

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. 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.

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

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.

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

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.

59
THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL
DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G.
BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND
INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents.

DECISION

BUENA, J.:

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

The antecedents unfold.

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

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

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

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

On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially
transmitted to the Senate of the Philippines,5 the Instrument of Ratification, the letter of the President6 and the VFA, for
concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its
Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and
Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint
public hearings were held by the two Committees.7

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

On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds (2/3) vote9 of its
members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18.10
60
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

61
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.

62
(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
63
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.

64
"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."

65
Via these consolidated11 petitions for certiorari and prohibition, petitioners - as legislators, non-governmental
organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute to herein respondents grave
abuse of discretion in ratifying the agreement.

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

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

II

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

III

Does the VFA constitute an abdication of Philippine sovereignty?

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

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

IV

Does the VFA violate:

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

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

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
66
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. Laron17 , we held:

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

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

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

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

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

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

"x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued
by President Quirino although they were involving only an indirect and general interest shared in common with the
public. The Court dismissed the objection that they were not proper parties and ruled that transcendental
importance to the public of these cases demands that they be settled promptly and definitely, brushing aside,
if we must, technicalities of procedure. We have since then applied the exception in many other cases.
(Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343)." (Underscoring
Supplied)

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,21 Daza vs. Singson,22 and Basco
vs. Phil. Amusement and Gaming Corporation,23 where we emphatically held:

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

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

67
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.
68
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.
69
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.30Without 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
70
(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,

71
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.

"x x x x x x x x x

"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
72
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,

73
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
1w phi 1

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

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.

Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.
Puno , J., see dissenting opinion.
Mendoza, J., in the result.
Panganiban, J., no part due to close personal and former professional relations with a petitioner, Sen. J.R. Salonga.

74
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14279 October 31, 1961

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners,


vs.
EASTERN SEA TRADING, respondent.

Office of the Solicitor General for petitioners.


Valentin Gutierrez for respondent.

CONCEPCION, J.:

Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the Commissioner of Customs.

Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at the
Port of Manila from August 25 to September 7, 1954. Some shipments came from Japan and others from Hong Kong.
In as much as none of the shipments had the certificate required by Central Bank Circulars Nos. 44 and 45 for the
release thereof, the goods thus imported were seized and subjected to forfeiture proceedings for alleged violations of
section 1363(f) of the Revised Administrative Code, in relation to the aforementioned circulars of the Central Bank. In
due course, the Collector of Customs of Manila rendered a decision on September 4, 1956, declaring said goods
forfeited to the Government and the goods having been, in the meantime, released to the consignees on surety
bonds, filed by the same, as principal, and the Alto Surety & Insurance Co., Inc., as surety, in compliance with orders
of the Court of First Instance of Manila, in Civil Cases Nos. 23942 and 23852 thereof directing that the amounts of
said bonds be paid, by said principal and surety, jointly and severally, to the Bureau of Customs, within thirty (30) days
from notice.

On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs on December 27,
1956. Subsequently, the consignee sought a review of the decision of said two (2) officers by the Court of Tax Appeals,
which reversed the decision of the Commissioner of Customs and ordered that the aforementioned bonds be cancelled
and withdrawn. Hence, the present petition of the Commissioner of Customs for review of the decision of the Court of
Tax Appeals.

The latter is based upon the following premises, namely: that the Central Bank has no authority to regulate
transactions not involving foreign exchange; that the shipments in question are in the nature of "no-dollar" imports;
that, as such, the aforementioned shipments do not involve foreign exchange; that, insofar as a Central Bank license
and a certificate authorizing the importation or release of the goods under consideration are required by Central Bank
Circulars Nos. 44 and 45, the latter are null and void; and that the seizure and forfeiture of the goods imported from
Japan cannot be justified under Executive Order No. 328,1 not only because the same seeks to implement an
executive agreement2 extending the effectivity of our3 Trades and Financial Agreements4 with Japan which
(executive agreement), it believed, is of dubious validity, but, also, because there is no governmental agency
authorized to issue the import license required by the aforementioned executive order.

The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned Circulars Nos.
44, and 45 have already been passed upon and repeatedly upheld by this Court (Pascual vs. Commissioner of
Customs, L-10979 [June 30, 1959]; Acting Commissioner of Customs vs. Leuterio, L-9142 [October 17, 1959]
Commissioner of Customs vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs. Serree
Investment Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-14274 [November
29, 1960]), for the reason that the broad powers of the Central Bank, under its charter, to maintain our monetary
75
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;

76
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.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon and De Leon, JJ., concur.
Barrera, J., took no part.

77
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 175888 February 11, 2009

SUZETTE 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.

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

G.R. No. 176051 February 11, 2009

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.

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

G.R. No. 176222 February 11, 2009

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA, represented
by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo; GABRIELA WOMEN'S
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.

DECISION

AZCUNA, J.:

These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of Appeals
in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated January 2,
2007.

The facts are not disputed.

78
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 50,000.00 as compensatory damages plus 50,000.00 as moral damages.

SO ORDERED.2

As a result, the Makati court ordered Smith detained at the Makati jail until further orders.

79
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

80
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

81
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.

82
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 Wiley8

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;

83
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

84
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. 1avv phi1

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

85
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. 1avv phi1

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, 82nd 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.

86
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.

87
EN BANC

January 12, 2016

G.R. No. 212426

RENE A.V. SAGUISAG, WIGBERTO E. TAADA, 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
CASIO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE SECRETARY
VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR.,
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES
OF THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents.

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

G.R. No. 212444

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


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

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

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

DECISION

SERENO, J.:

88
The petitions1 before this Court question the constitutionality of the Enhanced Defense Cooperation Agreement
(EDCA) between the Republic of the Philippines and the United States of America (U.S.). Petitioners allege that
respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction when they entered into
EDCA with the U.S.,2 claiming that the instrument violated multiple constitutional provisions.3 In reply, respondents
argue that petitioners lack standing to bring the suit. To support the legality of their actions, respondents invoke the
1987 Constitution, treaties, and judicial precedents.4

A proper analysis of the issues requires this Court to lay down at the outset the basic parameters of the
constitutional powers and roles of the President and the Senate in respect of the above issues. A more detailed
discussion of these powers and roles will be made in the latter portions.

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


RELATIONS, AND EDCA

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

Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at sigasig ang aking mga
tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang Pangulo) ng Pilipinas, pangangalagaan at
ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga batas nito, magiging makatarungan sa bawat tao, at
itatalaga ang aking sarili sa paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.

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

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

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

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

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

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

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

89
To be sure, this power is limited by the Constitution itself. To illustrate, the President may call out the AFP to prevent
or suppress instances of lawless violence, invasion or rebellion,14 but not suspend the privilege of the writ of habeas
corpus for a period exceeding 60 days, or place the Philippines or any part thereof under martial law exceeding that
same span. In the exercise of these powers, the President is also duty-bound to submit a report to Congress, in
person or in writing, within 48 hours from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus; and Congress may in turn revoke the proclamation or suspension. The same provision provides
for the Supreme Court's review of the factual basis for the proclamation or suspension, as well as the promulgation
of the decision within 30 days from filing.

C. The power and duty to conduct foreign relations

The President also carries the mandate of being the sole organ in the conduct of foreign relations.15 Since every state
has the capacity to interact with and engage in relations with other sovereign states,16 it is but logical that every state
must vest in an agent the authority to represent its interests to those other sovereign states.

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

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

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

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

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

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

II. HISTORICAL ANTECEDENTS OF EDCA


90
A. U.S. takeover of Spanish colonization and its military bases, and the transition to Philippine independence

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

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

When talks of the eventual independence of the Philippine Islands gained ground, the U.S. manifested the desire to
maintain military bases and armed forces in the country.31 The U.S. Congress later enacted the Hare-Hawes-Cutting
Act of 1933, which required that the proposed constitution of an independent Philippines recognize the right of the
U.S. to maintain the latter's armed forces and military bases.32 The Philippine Legislature rejected that law, as it also
gave the U.S. the power to unilaterally designate any part of Philippine territory as a permanent military or naval base
of the U.S. within two years from complete independence.33

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

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

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

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

A number of significant amendments to the 1947 MBA were made.45 With respect to its duration, the parties entered
into the Ramos-Rusk Agreement of 1966, which reduced the term of the treaty from 99 years to a total of 44 years or
until 1991.46 Concerning the number of U.S. military bases in the country, the Bohlen-Serrano Memorandum of
Agreement provided for the return to the Philippines of 17 U.S. military bases covering a total area of 117,075

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hectares.47 Twelve years later, the U.S. returned Sangley Point in Cavite City through an exchange of notes.48 Then,
through the Romulo-Murphy Exchange of Notes of 1979, the parties agreed to the recognition of Philippine sovereignty
over Clark and Subic Bases and the reduction of the areas that could be used by the U.S. military. 49 The agreement
also provided for the mandatory review of the treaty every five years.50 In 1983, the parties revised the 1947 MBA
through the Romualdez-Armacost Agreement.51 The revision pertained to the operational use of the military bases by
the U.S. government within the context of Philippine sovereignty,52 including the need for prior consultation with the
Philippine government on the former' s use of the bases for military combat operations or the establishment of long-
range missiles.53

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

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

C. Current legal regime on the presence of U.S. armed forces in the country

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

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

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

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

In the same year, the Philippines and the U.S. entered into the Mutual Logistics Support Agreement to "further the
interoperability, readiness, and effectiveness of their respective military forces"80 in accordance with the MDT, the
Military Assistance Agreement of 1953, and the VFA.81 The new agreement outlined the basic terms, conditions, and

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procedures for facilitating the reciprocal provision of logistics support, supplies, and services between the military
forces of the two countries.82 The phrase "logistics support and services" includes billeting, operations support,
construction and use of temporary structures, and storage services during an approved activity under the existing
military arrangements.83 Already extended twice, the agreement will last until 2017.84

D. The Enhanced Defense Cooperation Agreement

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

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

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

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

III. ISSUES

Petitioners mainly seek a declaration that the Executive Department committed grave abuse of discretion in entering
into EDCA in the form of an executive agreement. For this reason, we cull the issues before us:

A. Whether the essential requisites for judicial review are present

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

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

IV. DISCUSSION

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

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

Distinguished from the general notion of judicial power, the power of judicial review specially refers to both the authority
and the duty of this Court to determine whether a branch or an instrumentality of government has acted beyond the

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

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

xxxx

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

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the
judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn
and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under
the Constitution and to establish for the parties in an actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which
properly is the power of judicial review under the Constitution. x x x x. (Emphases supplied)

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

This moderating power, however, must be exercised carefully and only if it cannot be completely avoided. We stress
that our Constitution is so incisively designed that it identifies the spheres of expertise within which the different
branches of government shall function and the questions of policy that they shall resolve.99 Since the power of judicial
review involves the delicate exercise of examining the validity or constitutionality of an act of a coequal branch of
government, this Court must continually exercise restraint to avoid the risk of supplanting the wisdom of the
constitutionally appointed actor with that of its own.100
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Even as we are left with no recourse but to bare our power to check an act of a coequal branch of government - in
this case the executive - we must abide by the stringent requirements for the exercise of that power under the
Constitution. Demetria v. Alba101 and Francisco v. House of Representatives102 cite the "pillars" of the limitations on the
power of judicial review as enunciated in the concurring opinion of U.S. Supreme Court Justice Brandeis in Ashwander
v. Tennessee Valley Authority.103 Francisco104 redressed these "pillars" under the following categories:

1. That there be absolute necessity of deciding a case

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

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

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

5. That the parties are not in estoppel

6. That the Court upholds the presumption of constitutionality

(Emphases supplied)

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

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

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

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

Moreover, we cannot consider the sheer abstention of the Senators from the present proceedings as basis for finding
that there is no actual case or controversy before us. We point out that the focus of this requirement is the ripeness
for adjudication of the matter at hand, as opposed to its being merely conjectural or anticipatory. 109 The case must
involve a definite and concrete issue involving real parties with conflicting legal rights and legal claims admitting of
specific relief through a decree conclusive in nature.110 It should not equate with a mere request for an opinion or advice
on what the law would be upon an abstract, hypothetical, or contingent state of facts.111 As explained in Angara v.
Electoral Commission:112

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

95
and justice of the people as expressed through their representatives in the executive and legislative
departments of the government. (Emphases supplied)

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

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

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

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

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

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

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

96
enforcement of the assailed act.126 Applying that principle to this case, they must establish that EDCA involves the
exercise by Congress of its taxing or spending powers.127

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

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

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

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

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

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

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

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

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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.

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

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

Issues B and C shall be discussed together infra.

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

Historically, the Philippines has mirrored the division of powers in the U.S. government. When the Philippine
government was still an agency of the Congress of the U.S., it was as an agent entrusted with powers categorized as
executive, legislative, and judicial, and divided among these three great branches.143 By this division, the law implied
that the divided powers cannot be exercised except by the department given the power.144

This divide continued throughout the different versions of the Philippine Constitution and specifically vested the
supreme executive power in the Governor-General of the Philippines,145 a position inherited by the President of the
Philippines when the country attained independence. One of the principal functions of the supreme executive is the
responsibility for the faithful execution of the laws as embodied by the oath of office.146 The oath of the President
prescribed by the 1987 Constitution reads thus:

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

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

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

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

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

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

These obligations are as broad as they sound, for a President cannot function with crippled hands, but must be
capable of securing the rule of law within all territories of the Philippine Islands and be empowered to do so within
constitutional limits. Congress cannot, for instance, limit or take over the President's power to adopt implementing
rules and regulations for a law it has enacted.159
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More important, this mandate is self-executory by virtue of its being inherently executive in nature.160 As Justice Antonio
T. Carpio previously wrote,161

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

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

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

xxxx

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

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

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

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

In arguing against the approach, however, the dissent grossly failed to appreciate the nuances of the analysis, if read
holistically and in context. The concept that the President cannot function with crippled hands and therefore can
disregard the need for Senate concurrence in 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

100
of execution by the President must be given utmost deference. This approach is not different from that taken by the
Court in situations with fairly similar contexts.

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

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

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

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

To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the
authority to construe or invalidate treaties and executive agreements. However, the question whether the Philippine
government should espouse claims of its nationals against a foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In this
case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of
its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the Executive Department via the
instant petition for certiorari.

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

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

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

. . . The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that department
of government which can act on the basis of the best available information and can decide with
decisiveness .... It is also the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and consular officials regularly brief
101
him on meaningful events all over the world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The
regularity, nay, validity of his actions are adjudged under less stringent standards, lest their
judicial repudiation lead to breach of an international obligation, rupture of state relations,
forfeiture of confidence, national embarrassment and a plethora of other problems with equally
undesirable consequences.169 (Emphases supplied)

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

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

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

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

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

3. The President, however, may enter into an executive agreement on foreign military bases, troops, or
facilities, if (a) it is not the instrument that allows the presence of foreign military bases, troops, or facilities;
or (b) it merely aims to implement an existing law or treaty.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The aforecited Dissenting Opinion of Justice Brion disagrees with the ponencia's application of verba
legis construction to the words of Article XVIII, Section 25.187 It claims that the provision is "neither plain, nor that
simple."188 To buttress its disagreement, the dissent states that the provision refers to a historical incident, which is the
expiration of the 1947 MBA.189 Accordingly, this position requires questioning the circumstances that led to the
historical event, and the meaning of the terms under Article XVIII, Section 25.
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This objection is quite strange. The construction technique of verba legis is not inapplicable just because a provision
has a specific historical context. In fact, every provision of the Constitution has a specific historical context. The
purpose of constitutional and statutory construction is to set tiers of interpretation to guide the Court as to how a
particular provision functions. Verba legis is of paramount consideration, but it is not the only consideration. As this
Court has often said:

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

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

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

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

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

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

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

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

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As previously discussed, this constitutional mandate emanates from the inherent power of the President to enter into
agreements with other states, including the prerogative to conclude binding executive agreements that do not require
further Senate concurrence. The existence of this presidential power203 is so well-entrenched that Section 5(2)(a),
Article VIII of the Constitution, even provides for a check on its exercise. As expressed below, executive agreements
are among those official governmental acts that can be the subject of this Court's power of judicial review:

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

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

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

The categorization of subject matters that may be covered by international agreementsmentioned in Eastern
Sea Trading is not cast in stone. x x x.

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

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

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

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

xxxx

[T]he right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered
into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights,
patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of
claims. The validity of these has never been seriously questioned by our courts. (Emphases Supplied)
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That notion was carried over to the present Constitution. In fact, the framers specifically deliberated on whether the
general term "international agreement" included executive agreements, and whether it was necessary to include an
express proviso that would exclude executive agreements from the requirement of Senate concurrence. After noted
constitutionalist Fr. Joaquin Bernas quoted the Court's ruling in Eastern Sea Trading, the Constitutional Commission
members ultimately decided that the term "international agreements" as contemplated in Section 21, Article VII, does
not include executive agreements, and that a proviso is no longer needed. Their discussion is reproduced below:207

MS. AQUINO: Madam President, first I would like a clarification from the Committee. We have retained the words
"international agreement" which I think is the correct judgment on the matter because an international agreement is
different from a treaty. A treaty is a contract between parties which is in the nature of international agreement and also
a municipal law in the sense that the people are bound. So there is a conceptual difference. However, I would like to
be clarified if the international agreements include executive agreements.

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

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

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

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

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

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

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

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

Agreements with respect to the registration of trademarks have been concluded by the executive of various countries
under the Act of Congress of March 3, 1881 (21 Stat. 502) . . . International agreements involving political issues
or changes of national policy and those involving international agreements of a permanent character usually take
107
the form of treaties. But international agreements embodying adjustments of detail, carrying out well established
national policies and traditions and those involving arrangements of a more or less temporary nature usually
take the form of executive agreements.

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

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

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

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

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

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

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

xxx

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

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

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

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

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

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

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

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

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

FR. BERNAS: Yes. (Emphases Supplied)

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

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

The special nature of an executive agreement is not just a domestic variation in international agreements. International
practice has accepted the use of various forms and designations of international agreements, ranging from the
traditional notion of a treaty - which connotes a formal, solemn instrument - to engagements concluded in modem,
simplified forms that no longer necessitate ratification.212 An international agreement may take different forms: treaty,
act, protocol, agreement, concordat, compromis d'arbitrage, convention, covenant, declaration, exchange of notes,
statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other
form.213 Consequently, under international law, the distinction between a treaty and an international agreement or even
an executive agreement is irrelevant for purposes of determining international rights and obligations.

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

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

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

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

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


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b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts,
which must be pursuant to the authority granted by Congress222

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xxxx

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

xxxx

x x x. As the President wields vast powers and influence, her conduct in the external affairs of the nation is,
as Bayan would put it, "executive altogether." The right of the President to enter into or ratify binding executive
agreements has been confirmed by long practice.

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

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

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

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

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

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

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

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

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

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

3. The executive agreement must not go beyond the parameters, limitations, and standards set by the law
and/or treaty that the former purports to implement; and must not unduly expand the international obligation
expressly mentioned or necessarily implied in the law or treaty.

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

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

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

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

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

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

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

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

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

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

The third difference adverted to by the Justice Leonen's dissent is that the VFA contemplates the entry of troops for
training exercises, whereas EDCA allows the use of territory for launching military and paramilitary operations
conducted in other states.245 The dissent of Justice Teresita J. Leonardo-De Castro also notes that VFA was intended
for non-combat activides only, whereas the entry and activities of U.S. forces into Agreed Locations were borne of
military necessity or had a martial character, and were therefore not contemplated by the VFA.246

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

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

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

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

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

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

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

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

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

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

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

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

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Petitioners also challenge the argument that EDCA simply implements the VFA. They assert that the agreement
covers only short-term or temporary visits of U.S. troops "from time to time" for the specific purpose
of combined military exercises with their Filipino counterparts. They stress that, in contrast, U.S. troops are allowed
under EDCA to perform activities beyond combined military exercises, such as those enumerated in Articles 111(1)
and IV(4) thereof. Furthermore, there is some degree of permanence in the presence of U.S. troops in the country,
since the effectivity of EDCA is continuous until terminated. They proceed to argue that while troops have a "rotational"
presence, this scheme in fact fosters their permanent presence.

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

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

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

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

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

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

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

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

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

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

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

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

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

3. The following documents only, which shall be required in respect of United States military personnel who
enter the Philippines; xx xx.

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

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

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

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

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

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

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

In the same vein, the President may exercise the plenary power to expel or deport U.S. contractors 265 as may be
necessitated by national security, public safety, public health, public morals, and national interest.266 They may also be
deported if they are found to be illegal or undesirable aliens pursuant to the Philippine Immigration Act267 and the Data
Privacy Act.268 In contrast, Article 111(5) of the VFA requires a request for removal from the Philippine government
before a member of the U.S. personnel may be "dispos[ed] xx x outside of the Philippines."

c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in furtherance of the MDT
and the VFA
116
We begin our analysis by quoting the relevant sections of the MDT and the VFA that pertain to the activities in which
U.S. military and civilian personnel may engage:

MUTUAL DEFENSE TREATY

Article II

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

Article III

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

VISITING FORCES AGREEMENT

Preamble

xxx

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

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

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

xxx

Article I - Definitions

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

Article II - Respect for Law

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

Article VII - Importation and Exportation

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

Article VIII - Movement of Vessels and Aircraft


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

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

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

By its very language, the MDT contemplates a situation in which both countries shall engage in joint activities, so that
they can maintain and develop their defense capabilities. The wording itself evidently invites a reasonable construction
that the joint activities shall involve joint military trainings, 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 Forces Agreement, in which the parties agreed on
the status to be accorded to U.S. military and civilian personnel while conducting activities in the Philippines in relation
to the MDT.275

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

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

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

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

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

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

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

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

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

xxxx

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

xxxx

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

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

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

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

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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 apfropriate measures to protect U.S. forces and contractors282

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

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

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

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

I. POLICY LEVEL

xxxx

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

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

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

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

xx xx.

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

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

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II. EXERCISE LEVEL

1. TRAINING

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

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

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

2. ADMINISTRATION & LOGISTICS

xxxx

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

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

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

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

However, the provisions of EDCA directly contradict this argument by limiting itself to 10 years of effectivity. Although
this term is automatically renewed, the process for terminating the agreement is unilateral and the right to do so
automatically accrues at the end of the 10 year period. Clearly, this method does not create a permanent obligation.

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

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

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

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

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

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

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

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

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

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

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

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

The reasoning behind this interpretation is rooted in the constitutional role of the President who, as Commander-in-
Chief of our armed forces, is the principal strategist of the nation and, as such, duty-bound to defend our national
sovereignty and territorial integrity;291 who, as chief architect of our foreign relations, is the head policymaker tasked to
assess, ensure, and protect our national security and interests;292 who holds the most comprehensive and most
confidential information about foreign countries293 that may affect how we conduct our external affairs; and who has
unrestricted access to highly classified military intelligence data294 that may threaten the life of the nation. Thus, if after
a geopolitical prognosis of situations affecting the country, a belief is engendered that a much longer period of military
training is needed, the President must be given ample discretion to adopt necessary measures including the flexibility
to set an extended timetable.

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
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of each visit or activity.295 That purpose must be analyzed on a case-by-case basis depending on the factual
circumstances surrounding the conclusion of the implementing agreement. While the validity of the President's actions
will be judged under less stringent standards, the power of this Court to determine whether there was grave abuse of
discretion remains unimpaired.

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

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

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

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

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

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

EDCA requires that all activities within Philippine territory be in accordance with Philippine law. This means that certain
privileges denied to aliens are likewise denied to foreign military contractors. Relevantly, providing security300and
carrying, owning, and possessing firearms301 are illegal for foreign civilians.

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

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

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

For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of spilling fuel in the waters off Manila
Bay.304 The Senate Committee on Foreign Relations and the Senate Committee on Environment and Natural
Resources chairperson claimed environmental and procedural violations by the contractor.305 The U.S. Navy
investigated the contractor and promised stricter guidelines to be imposed upon its contractors.306 The statement
attributed to Commander Ron Steiner of the public affairs office of the U.S. Navy's 7th Fleet - that U.S. Navy
contractors are bound by Philippine laws - is of particular relevance. The statement acknowledges not just the
presence of the contractors, but also the U.S. position that these contractors are bound by the local laws of their host
state. This stance was echoed by other U.S. Navy representatives.307

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

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

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

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

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

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

a. Preliminary point on badges of exclusivity

As a preliminary observation, petitioners have cherry-picked provisions of EDCA by presenting so-called "badges of
exclusivity," despite the presence of contrary provisions within the text of the agreement itself.

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

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

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

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

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

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

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

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

On these points, the Court is not persuaded.

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

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

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

The parallelism, however, ends when the situation involves facilities that can be considered immovable. Under the
MBA, the U.S. retains ownership if it paid for the facility.325 Under EDCA, an immovable is owned by the Philippines,

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even if built completely on the back of U.S. funding.326 This is consistent with the constitutional prohibition on foreign
land ownership.327

Despite the apparent similarity, the ownership of property is but a part of a larger whole that must be considered
before the constitutional restriction is violated. Thus, petitioners' points on operational control will be given more
attention in the discussion below. The arguments on policy are, however, outside the scope of judicial review and will
not be discussed

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

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

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

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

1947 MBA/ 1946 Treaty of General Relations EDCA

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

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

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Philippine Islands, except the use of such bases, 1. The Philippines shall retain ownership of and title to
necessary appurtenances to such bases, and the rights Agreed Locations.
incident thereto, as the United States of America, by
agreement with the Republic of the Philippines may deem xxxx
necessary to retain for the mutual protection of the Republic
of the Philippines and of the United States of America. x x x. 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.

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 EDCA

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

The Philippines agree to enter into negotiations with the Recognizing that all United States access to and use of
United States at the latter's request, to permit the United facilities and areas will be at the invitation of the
States to expand such bases, to exchange such bases for Philippines and with full respect for the Philippine
other bases, to acquire additional bases, or relinquish rights Constitution and Philippine laws;
to bases, as any of such exigencies may be required by
military necessity. xxxx

1946 Treaty of Gen. Relations, Art. I: EDCA. Art. II(4):

The United States of America agrees to withdraw and "Agreed Locations" means facilities and areas that
surrender, and does hereby withdraw and surrender, all are provided by the Government of the
rights of possession, supervision, jurisdiction, control or Philippines through the AFP and that United States forces,
sovereignty existing and exercised by the United States of United States contractors, and others as mutually agreed,
America in and over the territory and the people of the shall have the right to access and use pursuant to this
Philippine Islands, except the use of such Agreement. Such Agreed Locations may be listed in an annex
bases, necessary appurtenances to such bases, and the to be appended to this Agreement, and may be further
rights incident thereto, as the United States of America, by described in implementing arrangements.
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.

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.
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1947 MBA EDCA

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

The Philippine Designated Authority and its authorized


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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

The United States shall, subject to previous agreement with With consideration of the views of the Parties,
the Philippines, have the right to use land and coastal sea the Philippines hereby authorizes and agrees that United
areas of appropriate size and location for periodic States forces, United States contractors, and vehicles,
maneuvers, for additional staging areas, bombing and vessels, and aircraft operated by or for United States forces
gunnery ranges, and for such intermediate airfields as may conduct the following activities with respect to Agreed
may be required for safe and efficient air operations. Locations: training; transit; support and related activities;

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Operations in such areas shall be carried on with due regard refueling of aircraft; bunkering of vessels; temporary
and safeguards for the public safety. maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning
1947 MBA, Art.I(2): of equipment, supplies, and materiel; deploying forces and
materiel; and such other activities as the Parties may agree.
The Philippines agrees to permit the United States, upon
notice to the Philippines, to use such of those bases listed
in Annex B as the United States determines to be required
by military necessity.

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

1947 MBA EDCA

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

Such rights, power and authority shall include, inter


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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

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

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

1947 MBA EDCA

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

Whenever it is necessary to acquire by

condemnation or expropriation proceedings real property


belonging to any private persons, associations or
corporations located in bases named in Annex A and Annex B
in order to carry out the purposes of this Agreement, the
Philippines will institute and prosecute such condemnation or
expropriation proceedings in accordance with the laws of the
Philippines. The United States agrees to reimburse the
Philippines for all the reasonable expenses, damages and
costs therebv incurred, including the value of the property as

130
determined by the Court. In addition, subject to the mutual
agreement of the two Governments, the United States will
reimburse the Philippines for the reasonable costs of
transportation and removal of any occupants displaced or
ejected by reason of the condemnation or expropriation.

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

1947 MBA EDCA

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

It is mutually agreed that the United States shall have the 1. "United States personnel" means United States military
right to bring into the Philippines members of the United and civilian personneltemporarily in the territory of the
States military forces and the United States nationals Philippines in connection with activities approved by the
employed by or under a contract with the United States Philippines, as those terms are defined in the VFA.
together with their families, and technical personnel of
other nationalities (not being persons excluded by the laws x xx x
of the Philippines) in connection with the construction,
maintenance, or operation of the bases. The United States 3. "United States contractors" means companies and firms,
shall make suitable arrangements so that such persons may and their employees, under contract or subcontract to or on
be readily identified and their status established when behalf of the United States Department of Defense. United
necessary by the Philippine authorities. Such persons, other States contractors are not included as part of
than members of the United States armed forces in uniform, the definition of United States personnel in this
shall present their travel documents to the appropriate Agreement, including within the context of the VFA.
Philippine authorities for visas, it being understood that no
objection will be made to their travel to the Philippines as
non-immigrants.

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

1947 MBA EDCA

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

The Philippines consents that the United

States shall have the right to exercise jurisdiction over the


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

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

131
1947 MBA EDCA

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

It is mutually agreed that the United States

shall have the right to establish on bases, free of all


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

c. The meaning of military facilities and bases

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

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

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

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

1,000 hectares Camp O'Donnel

20,000 hectares Crow Valley Weapon's Range

55,000 hectares Clark Air Base

150 hectares Wallace Air Station

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400 hectares John Hay Air Station

15,000 hectares Subic Naval Base

1,000 hectares San Miguel Naval Communication

750 hectares Radio Transmitter in Capas, Tarlac

900 hectares Radio Bigot Annex at Bamban, Tarlac329

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

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

The result of the debates and subsequent voting is Section 25, Article XVIII of the Constitution, which specifically
restricts, among others, foreign military facilities or bases. At the time of its crafting of the Constitution, the 1986
Constitutional Commission had a clear idea of what exactly it was restricting. While the term "facilities and bases" was
left undefined, its point of reference was clearly those areas covered by the 1947 MBA as amended.

Notably, nearly 30 years have passed since then, and the ever-evolving world of military technology and geopolitics
has surpassed the understanding of the Philippine people in 1986. The last direct military action of the U.S. in the
region was the use of Subic base as the staging ground for Desert Shield and Desert Storm during the Gulf War.331In
1991, the Philippine Senate rejected the successor treaty of the 1947 MBA that would have allowed the continuation
of U.S. bases in the Philippines.

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

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

By definition, Agreed Locations are

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

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

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

133
Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the Philippines to "conduct the
following activities: "training; transit; support and related activities; refueling of aircraft; bunkering of vessels; temporary
maintenance of vehicles, vessels and aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies and materiel; deploying forces and materiel; and such other activities as the
Parties may agree."

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

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

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

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

SPEECH OF COMMISSIONER REGALADO334

xxxx

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

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

xxxx

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

xxxx

134
Of course, one side of persuasion has submitted categorical, unequivocal and forceful assertions of their positions.
They are entitled to the luxury of the absolutes. We are urged now to adopt the proposed declaration as a
"golden," "unique" and "last" opportunity for Filipinos to assert their sovereign rights. Unfortunately, I have
never been enchanted by superlatives, much less for the applause of the moment or the ovation of the hour. Nor do I
look forward to any glorious summer after a winter of political discontent. Hence, if I may join Commissioner Laurel, I
also invoke a caveat not only against the tyranny of labels but also the tyranny of slogans.336

xxxx

SPEECH OF COMMISSIONER SUAREZ337

MR. SUAREZ: Thank you, Madam President.

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

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

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

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

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

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

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

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

8. That on the legal viewpoint and in the ultimate analysis, all the bases agreements are null and void ab
initio, especially because they did not count the sovereign consent and will of the Filipino people.338

xxxx

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

xxxx

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

SPEECH OF COMMISSIONER BENNAGEN340


135
xxxx

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

SPEECH OF COMMISSIONER BACANI342

xxxx

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

SPEECH OF COMMISSIONER JAMIR344

xxxx

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

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

SPEECH OF COMMISSIONER TINGSON346

xxxx

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

xxxx

Allow me to say in summation that I am for the retention of American military bases in the Philippines provided
that such an extension from one period to another shall be concluded upon concurrence of the parties, and
such extension shall be based on justice, the historical amity of the people of the Philippines and the United
States and their common defense interest.348

SPEECH OF COMMISSIONER ALONTO349

136
xxxx

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

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

SPEECH OF COMMISSIONER GASCON351

xxxx

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

xxxx

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

xxxx

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

xxxx

SPEECH OF COMMISSIONER TADEO354

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

SPEECH OF COMMISSIONER QUESADA356

137
xxxx

The drift in the voting on issues related to freeing ourselves from the instruments of domination and
subservience has clearly been defined these past weeks.

xxxx

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

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

xxxx

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

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

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

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

xxxx

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

xxxx

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

xxxx

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

SPEECH OF COMMISSIONER P ADILLA360

xxxx

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

REBUTTAL OF COMMISSIONER NOLLEDO362

xxxx

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

xxxx

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

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

i. First standard: independence from foreign control

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

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

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

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

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

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

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

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

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

EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and access. Under its pertinent
provisions, it is the Designated Authority of the Philippines that shall, when requested, assist in facilitating transit or
access to public land and facilities.371 The activities carried out within these locations are subject to agreement as
authorized by the Philippine govemment.372 Granting the U.S. operational control over these locations is likewise
subject to EDCA' s security mechanisms, which are bilateral procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or a duly designated representative is given access to the
Agreed Locations.374

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

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

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

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

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

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

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

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

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

Economic self reliance is a primary objective of a developing country that is keenly aware of overdependence on
external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it means
avoiding mendicancy in the international community. Independence refers to the freedom from undue foreign
control of the national economy, especially in such strategic industries as in the development of natural resources
and public utilities.378 (Emphases supplied)
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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
1wphi1

itself is "[t]he state or condition of being free from dependence, subjection, or control. "380

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

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

This argument misreads the text, which is quoted below:

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

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

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

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

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

At times, though, operational control can mean something slightly different. In JUSMAG Philippines v. National Labor
Relations Commission, the Memorandum of Agreement between the AFP and JUSMAG Philippines defined the term
as follows:384

The term "Operational Control" includes, but is not limited to, all personnel administrative actions, such as: hiring
recommendations; firing recommendations; position classification; discipline; nomination and approval of incentive
awards; and payroll computation.

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

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

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

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

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

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

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

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

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

Operational control is defined thus:399

OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to perform those functions of
command over subordinate forces involving organizing and employing commands and forces, assigning tasks,
designating objectives, and giving authoritative direction over all aspects of military operations and joint training
necessary to accomplish the mission. It should be delegated to and exercised by the commanders of subordinate
organizations; normally, this authority is exercised through subordinate JFCs, Service, and/or functional component
commanders. OPCON provides authority to organize and employ commands and forces as the commander considers
necessary to accomplish assigned missions. It does not include authoritative direction for logistics or matters of
administration, discipline, internal organization, or unit training. These elements of COCOM must be specifically
delegated by the CCDR. OPCON does include the authority to delineate functional responsibilities and operational
areas of subordinate JFCs.
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Operational control is therefore the delegable aspect of combatant command, while command and control is the
overall power and responsibility exercised by the commander with reference to a mission. Operational control is a
narrower power and must be given, while command and control is plenary and vested in a commander. Operational
control does not include the planning, programming, budgeting, and execution process input; the assignment of
subordinate commanders; the building of relationships with Department of Defense agencies; or the directive authority
for logistics, whereas these factors are included in the concept of command and control.400

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

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

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

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

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

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

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

ii. Second standard: Philippine sovereignty and applicable law

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

The sensitivity of EDCA provisions to the laws of the Philippines must be seen in light of Philippine sovereignty and
jurisdiction over the Agreed Locations.

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

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

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

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

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

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

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

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

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

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

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

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

In the first place, international law disallows any attack on the Agreed Locations simply because of the presence of
U.S. personnel. Article 2(4) of the United Nations Charter states that "All Members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations."418 Any unlawful attack on the Philippines breaches

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the treaty, and triggers Article 51 of the same charter, which guarantees the inherent right of individual or collective
self-defence.

Moreover, even if the lawfulness of the attack were not in question, international humanitarian law standards prevent
participants in an armed conflict from targeting non-participants. International humanitarian law, which is the branch
of international law applicable to armed conflict, expressly limits allowable military conduct exhibited by forces of a
participant in an armed conflict.419 Under this legal regime, participants to an armed conflict are held to specific
standards of conduct that require them to distinguish between combatants and non-combatants,420 as embodied by
the Geneva Conventions and their Additional Protocols.421

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

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

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

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

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

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

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

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

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

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

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


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

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

In fact, some of the host states in these agreements give specific military-related rights to the U.S. For example, under
Article IV(l) of the US.-Bulgaria Defense Cooperation Agreement, "the United States forces x x x are authorized
access to and may use agreed facilities and areas x x x for staging and deploying of forces and materiel, with the
purpose of conducting x x x contingency operations and other missions, including those undertaken in the framework
of the North Atlantic Treaty." In some of these agreements, host countries allow U.S. forces to construct facilities for
the latters exclusive use.441

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

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

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

There is nothing novel, either, in the EDCA provision on the prepositioning and storing of "defense equipment,
supplies, and materiel,"448 since these are sanctioned in the VFA. In fact, the two countries have already entered into
various implementing agreements in the past that are comparable to the present one. The Balikatan 02-1 Terms of
Reference mentioned in Lim v. Executive Secretary specifically recognizes that Philippine and U.S. forces "may share
x x x in the use of their resources, equipment and other assets." Both the 2002 and 2007 Mutual Logistics Support
Agreements speak of the provision of support and services, including the "construction and use of temporary
structures incident to operations support" and "storage services" during approved activities.449 These logistic supplies,
support, and services include the "temporary use of x x x nonlethal items of military equipment which are not
designated as significant military equipment on the U.S. Munitions List, during an approved activity."450Those activities
include "combined exercises and training, operations and other deployments" and "cooperative efforts, such as
humanitarian assistance, disaster relief and rescue operations, and maritime anti-pollution operations" within or
outside Philippine territory.451 Under EDCA, the equipment, supplies, and materiel that will be prepositioned at Agreed
147
Locations include "humanitarian assistance and disaster relief equipment, supplies, and materiel. "452 Nuclear weapons
are specifically excluded from the materiel that will be prepositioned.

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

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only refers to mutual help and defense in
the Pacific area.453 We believe that any discussion of the activities to be undertaken under EDCA vis-a-vis the defense
of areas beyond the Pacific is premature. We note that a proper petition on that issue must be filed before we rule
thereon. We also note that none of the petitions or memoranda has attempted to discuss this issue, except only to
theorize that the U.S. will not come to our aid in the event of an attack outside of the Pacific. This is a matter of policy
and is beyond the scope of this judicial review.

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

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

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

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

EPILOGUE

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

148
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.

MARIA LOURDES P. A. SERENO


Chief Justice

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July 19, 2016

G.R. No. 204605

INTELLECTUAL PROPERTY ASSOCIATION OF THE PHILIPPINES, Petitioner,


vs.
HON. PAQUITO OCHOA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERT DEL ROSARIO, IN
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, AND HON. RICARDO
BLANCAFLOR, IN HIS CAPACITY AS THE DIRECTOR GENERAL OF THE INTELLECTUAL PROPERTY
OFFICE OF THE PHILIPPINES, Respondents.

DECISION

BERSAMIN, J.:

In this special civil action for certiorari and prohibition, the Intellectual Property Association of the Philippines (IPAP)
seeks to declare the accession of the Philippines to the Protocol Relating to the Madrid Agreement Concerning the
International Registration of Marks (Madrid Protocol) unconstitutional on the ground of the lack of concurrence by the
Senate, and in the alternative, to declare the implementation thereof as unconstitutional because it conflicts with
Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines (IP Code).1

We find and declare that the President's ratification is valid and constitutional because the Madrid Protocol, being an
executive agreement as determined by the Department of Foreign Affairs, does not require the concurrence of the
Senate.

Antecedents

The Madrid System for the International Registration of Marks (Madrid System), which is the centralized system
providing a one-stop solution for registering and managing marks worldwide, allows the trademark owner to file one
application in one language, and to pay one set of fees to protect his mark in the territories of up to 97 member-
states.2 The Madrid System is governed by the Madrid Agreement, concluded in 1891, and the Madrid
Protocol, concluded in 1989.3

The Madrid Protocol, which was adopted in order to remove the challenges deterring some countries from acceding
to the Madrid Agreement, has two objectives, namely: (1) to facilitate securing protection for marks; and (2) to make
the management of the registered marks easier in different countries.4

In 2004; the Intellectual Property Office of the Philippines (IPOPHL), the government agency mandated to administer
the intellectual property system of the country and to implement the state policies on intellectual property; began
considering the country's accession to the Madrid Protocol. However, based on its assessment in 2005, the IPOPHL
needed to first improve its own operations before making the recommendation in favor of accession. The IPOPHL
thus implemented reforms to eliminate trademark backlogs and to reduce the turnaround time for the registration of
marks.5

In the meanwhile, the IPOPHL mounted a campaign for information dissemination to raise awareness of the Madrid
Protocol. It launched a series of consultations with stakeholders and various business groups regarding the
Philippines' accession to the Madrid Protocol. It ultimately arrived at the conclusion that accession would benefit the
country and help raise the level of competitiveness for Filipino brands. Hence, it recommended in September 2011 to
the Department of Foreign Affairs (DFA) that the Philippines should accede to the Madrid Protocol.6

After its own review, the DFA endorsed to the President the country's accession to the Madrid Protocol. Conformably
with its express authority under Section 9 of Executive Order No. 459 (Providing for the Guidelines in the Negotiation
of International Agreements and its Ratification) dated November 25, 1997, the DFA determined that the Madrid
150
Protocol was an executive agreement. The IPOPHL, the Department of Science and Technology, and the
1wphi1

Department of Trade and Industry concurred in the recommendation of the DFA.7

On March 27, 2012, President Benigno C. Aquino III ratified the Madrid Protocol through an instrument of accession,
The instrument of accession was deposited with the Director General of the World Intellectual Property Organization
(WIPO) on April 25, 2012.8 The Madrid Protocol entered into force in the Philippines on July 25, 2012.9

Petitioner IP AP, an association of more than 100 law firms and individual practitioners in Intellectual Property Law
whose main objective is to promote and protect intellectual property rights in the Philippines through constant
assistance and involvement in the legislation of intellectual property law,10 has commenced this special civil action
for certiorari and prohibition11 to challenge the validity of the President's accession to the Madrid Protocol without the
concurrence of the Senate. Citing Pimentel, Jr. v. Office of the Executive Secretary, the IPAP has averred:

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.12

According to the IPAP, the Madrid Protocol is a treaty, not an executive agreement; hence, respondent DFA Secretary
Albert Del Rosario acted with grave abuse of discretion in determining the Madrid Protocol as an executive
agreement.13

The IPAP has argued that the implementation of the Madrid Protocol in the Philippines; specifically the processing of
foreign trademark applications, conflicts with the IP Code,14 whose Section 125 states:

Sec. 125. Representation; Address for Service. - If the applicant is not domiciled or has no real and effective
commercial establishment in the Philippines; he shall designate by a written document filed in the office, the name
and address of a Philippine resident who may be served notices or process in proceedings affecting the mark. Such
notices or services may be served upon the person so designated by leaving a copy thereof at the address specified
in the last designation filed. If the person so designated cannot be found at the address given in the last designation,
such notice or process may be served upon the Director. (Sec. 3; R.A. No. 166 a)

It has posited that Article 2 of the Madrid Protocol provides in contrast:

Article 2

Securing Protection through International Registration

(1) Where an application for the registration of a mark has been filed with the Office of a Contracting Party, or where
a mark has been registered in the register of the Office of a Contracting Party, the person in whose name that
application (hereinafter referred to as "the basic application;') or that registration (hereinafter referred to as "the basic
registration") stands may, subject to the provisions of this Protocol secure protection for his mark in the territory of the
Contracting Parties, by obtaining the registration of that mark in the register of the International Bureau of the World
Intellectual Property Organization (hereinafter referred to as "the international registration," "the International
Register," "the International Bureau" and "the Organization'', respectively), provided that,

(i) where the basic application has been filed with the Office of a Contracting State or where the basic registration has
been made by such an Office, the person in whose name that application or registration stands is a national of that
Contracting State, or is domiciled, or has a real and effective industrial or commercial establishment, in the said
Contracting State,

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(ii) where the basic application has been filed with the Office of a Contracting Organization or where the basic
registration has been made by such an Office, the person in whose name that application or registration stands is a
national of a State member of that Contracting Organization, or is domiciled, or has a real and effective industrial or
commercial establishment, in the territory of the said Contracting Organization.

(2) The application for international registration (hereinafter referred to as "the international application") shall be filed
with the International Bureau through the intermediary of the Office with which the basic application was filed or by
which the basic registration was made (hereinafter referred to as "the Office of origin"), as the case may be.

(3) Any reference in this Protocol to an "Office" or an "Office of a Contracting Party" shall be construed as a reference
to the office that is in charge, on behalf of a Contracting Party, of the registration of marks, and any reference in this
Protocol to "marks" shall be construed as a reference to trademarks and service marks.

(4) For the purposes of this Protocol, "territory of a Contracting Party" means, where the Contracting Party is a State,
the territory of that State and, where the Contracting Party is an intergovernmental organization, the territory in which
the constituting treaty of that intergovernmental organization applied.

The IPAP has insisted that Article 2 of the Madrid Protocol means that foreign trademark applicants may file their
applications through the International Bureau or the WIPO, and their applications will be automatically granted
trademark protection without the need for designating their resident agents in the country.15

Moreover, the IPAP has submitted that the procedure outlined in the Guide to the International Registration of
Marks relating to representation before the International Bureau is the following, to wit:

Rule 3(1)(a) 09.02 References in the Regulations, Administrative Instructions or in this Guide to representation relate
only to representation before the International Bureau. The questions of the need for a representative before the Office
of origin or the Office of a designated Contracting Party (for example, in the event of a refusal of protection issued by
such an Office), who may act as a representative in such cases and the method of appointment, are outside the scope
of the Agreement, Protocol and Regulations and are governed by the law and practice of the Contracting Party
concerned.

which procedure is in conflict with that under Section 125 of the IP Code, and constitutes in effect an amendment of
the local law by the Executive Department.16

The IPAP has prayed that the implementation of the Madrid Protocol in the Philippines be restrained in order to prevent
future wrongs considering that the IP AP and its constituency have a clear and unmistakable right not to be deprived
of the rights granted them by the IP Code and existing local laws.17

In its comment in behalf of the respondents, the Office of the Solicitor General (OSG) has stated that the IPAP does
not have the locus standi to challenge the accession to the Madrid Protocol; that the IPAP cannot invoke the Court's
original jurisdiction absent a showing of any grave abuse of discretion on the part of the respondents; that the
President's ratification of the Madrid Protocol as an executive agreement is valid because the Madrid Protocol is only
procedural, does not create substantive rights, and does not require the amendment of the IP Code; that the IPAP is
not entitled to the restraining order or injunction because it suffers no damage from the ratification by the President,
and there is also no urgency for such relief; and the IPAP has no clear unmistakable right to the relief sought.18

Issues

The following issues are to be resolved, namely:

I. Whether or not the IP AP has locus standi to challenge the President's ratification of the Madrid Protocol;

II. Whether or not the President's ratification of the Madrid Protocol is valid and constitutional; and
152
III. Whether or not the Madrid Protocol is in conflict with the IP Code.

Ruling of the Court

The petition for certiorari and prohibition is without merit.

A.

The issue of legal standing to sue, or locus standi

The IPAP argues in its reply19 that it has the locus standi to file the present case by virtue of its being an association
whose members stand to be injured as a result of the enforcement of the Madrid Protocol in the Philippines; that the
injury pertains to the acceptance and approval of applications submitted through the Madrid Protocol without local
representation as required by Section 125 of the IP Code;20 and that such will diminish the rights granted by the IP
Code to Intellectual Property Law practitioners like the members of the IPAP.21

The argument of the IPAP is untenable.

Legal standing refers to "a right of appearance in a court of justice on a given question." 22 According to Agan, Jr. v.
Philippine International Air Terminals Co., Inc.,23standing is "a peculiar concept in constitutional law because 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."

The Court has frequently felt the need to dwell on the issue of standing in public or constitutional litigations to sift the
worthy from the unworthy public law litigants seeking redress or relief. The following elucidation in De Castro v. Judicial
and Bar Council24offers the general understanding of the context of legal standing, or locus standi for that
purpose, viz. :

In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the
petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official
action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public
service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for,
as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:

The question on legal standing is whether such parties have "'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," Accordingly, it has
been held that the interest of a person 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.

It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for determining whether a
petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a
statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct
injury as a result." Vera was followed in Custodio v. President of the Senate, Manila Race Horse Trainers' Association
v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public Works.

Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived
by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized the

153
approach when the cases had "transcendental importance." Some notable controversies whose petitioners did not
pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.

In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues raised by the
petition due to their "farreaching implications,'; even if the petitioner had no personality to file the suit. The liberal
approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary
citizens, legislators, and civic organizations to bring their suits involving the constitutionality or validity of laws,
regulations, and rulings.

However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive
or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner
may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently
demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication ofa public right.25

The injury that the IPAP will allegedly suffer from the implementation of the Madrid Protocol is imaginary, incidental
and speculative as opposed to a direct and material injury required by the foregoing tenets on locus
standi. Additionally, as the OSG points out in the comment,26 the IPAP has misinterpreted Section 125 of the IP Code
on the issue of representation. The provision only states that a foreign trademark applicant "shall designate by a
written document filed in the office, the name and address of a Philippine resident who may be served notices or
process in proceedings affecting the mark;" it does not grant anyone in particular the right to represent the foreign
trademark applicant. Hence, the IPAP cannot justly claim that it will suffer irreparable injury or diminution of rights
granted to it by Section 125 of the IP Code from the implementation of the Madrid Protocol.

Nonetheless, the IPAP also emphasizes that the paramount public interest involved has transcendental importance
because its petition asserts that the Executive Department has overstepped the bounds of its authority by thereby
cutting into another branch's functions and responsibilities.27 The assertion of the IPAP may be valid on this score.
There is little question that the issues raised herein against the implementation of the Madrid Protocol are of
transcendental importance. Accordingly, we recognize IPAP's locus standi to bring the present challenge. Indeed, the
Court has adopted a liberal attitude towards locus standi whenever the issue presented for consideration has
transcendental significance to the people, or whenever the issues raised are of paramount importance to the public.28

B.

Accession to the

Madrid Protocol was constitutional

The IP AP submits that respondents Executive Secretary and DFA Secretary Del Rosario gravely abused their
discretion in determining that there was no need for the Philippine Senate's concurrence with the Madrid Protocol; that
the Madrid Protocol involves changes of national policy, and its being of a permanent character requires the Senate's
concurrence,29 pursuant to Section 21, Article VII of the Constitution, which states 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."

Before going further, we have to distinguish between treaties and international agreements, which require the Senate's
concurrence, on one hand, and executive agreements, which may be validly entered into without the Senate's
concurrence. Executive Order No. 459, Series of 1997,30 notes the following definitions, to wit:

Sec. 2. Definition of Terms.

a. International agreement - shall refer to a contract or understanding, regardless of nomenclature, entered into
between the Philippines and another government in written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments.

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b. Treaties - international agreements entered into by the Philippines which require legislative concurrence after
executive ratification. This term may include compacts like conventions, declarations, covenants and acts.

c. Executive Agreements - similar to treaties except that they do not require legislative concurrence.

The Court has highlighted the difference between treaties and executive agreements in Commissioner of Customs v.
Eastern Sea Trading,31 thusly:

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 Philippines, the DFA, by virtue of Section 9, Executive Order No. 459,32 is initially given the power to determine
whether an agreement is to be treated as a treaty or as an executive agreement. To determine the issue of whether
DFA Secretary Del Rosario gravely abused his discretion in making his determination relative to the Madrid
Protocol, we review the jurisprudence on the nature of executive agreements, as well as the subject matters to be
covered by executive agreements.

The pronouncement in Commissioner of Customs v. Eastern Sea Trading33is instructive, to wit:

x x x 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.

xxxx

"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.

xxxx

Agreements with respect to the registration of trademarks have been concluded by the Executive with various
countries under the Act of Congress of March 3, 1881 (21 Stat. 502), x x x

xxxx

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 or more formal documents
denominated 'agreements' or 'protocols'. The point where ordinary correspondence between this and other
governments ends and agreements - whether denominated executive agreements or exchanges of notes or otherwise
- begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to discuss here the large

155
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. x x x 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. (Emphasis ours)

As the foregoing pronouncement indicates, the registration of trademarks and copyrights have been the subject of
executive agreements entered into without the concurrence of the Senate. Some executive agreements have been
concluded in conformity with the policies declared in the acts of Congress with respect to the general subject matter.

It then becomes relevant to examine our state policy on intellectual property in general, as reflected in Section 2 of
our IP Code, to wit:

Section 2. Declaration of State Policy. - The State recognizes that an effective intellectual and industrial
property system is vital to the development of domestic and creative activity, facilitates transfer of
technology, attracts foreign investments, and ensures market access for our products. It shall protect and
secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual
property and creations, particularly when beneficial to the people, for such periods as provided in this Act.

The use of intellectual property bears a social function. To this end, the State shall promote the diffusion of knowledge
and information for the promotion of national development and progress and the common good.

It is also the policy of the State to streamline administrative procedures of registering patents, trademarks
and copyright, to liberalize the registration on the transfer of technology; and to enhance the enforcement of
intellectual property rights in the Philippines.

In view of the expression of state policy having been made by the Congress itself, the IPAP is plainly mistaken in
asserting that "there was no Congressional act that authorized the accession of the Philippines to the Madrid
Protocol."34

Accordingly, DFA Secretary Del Rosarios determination and treatment of the Madrid Protocol as an executive
agreement; being in apparent contemplation of the express state policies on intellectual property as well as within his
power under Executive Order No. 459, are upheld. We observe at this point that there are no hard and fast rules on
the propriety of entering into a treaty or an executive agreement on a given subject 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
their international agreement in the form they so wish to further their respective interests. 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;
inasmuch as all the parties; regardless of the form, become obliged to comply conformably with the time-honored
principle of pacta sunt servanda.35The principle binds the parties to perform in good faith their parts in the agreements.36

c.

There is no conflict between the

Madrid Protocol and the IP Code.

156
The IPAP also rests its challenge on the supposed conflict between the Madrid Protocol and the IP Code, contending
that the Madrid Protocol does away with the requirement of a resident agent under Section 125 of the IP Code; and
that the Madrid Protocol is unconstitutional for being in conflict with the local law, which it cannot modify.

The IPAP's contentions stand on a faulty premise. The method of registration through the IPOPHL, as laid down by
the IP Code, is distinct and separate from the method of registration through the WIPO, as set in the Madrid
Protocol. Comparing the two methods of registration despite their being governed by two separate systems of
registration is thus misplaced.

In arguing that the Madrid Protocol conflicts with Section 125 of the IP Code, the IP AP highlights the importance of
the requirement for the designation of a resident agent. It underscores that the requirement is intended to ensure that
non-resident entities seeking protection or privileges under Philippine Intellectual Property Laws will be subjected to
the country's jurisdiction. It submits that without such resident agent, there will be a need to resort to costly, time
consuming and cumbersome extraterritorial service of writs and processes.37

The IPAP misapprehends the procedure for examination under the Madrid Protocol, The difficulty, which the IPAP
illustrates, is minimal, if not altogether inexistent. The IPOPHL actually requires the designation of the resident agent
when it refuses the registration of a mark. Local representation is further required in the submission of the Declaration
of Actual Use, as well as in the submission of the license contract.38 The Madrid Protocol accords with the intent and
spirit of the IP Code, particularly on the subject of the registration of trademarks. The Madrid Protocol does not amend
or modify the IP Code on the acquisition of trademark rights considering that the applications under the Madrid
Protocol are still examined according to the relevant national law, In that regard, the IPOPHL will only grant protection
to a mark that meets the local registration requirements.

WHEREFORE, this Court DISMISSES the petition for certiorari and prohibition for lack of merit; and ORDERS the
petitioner to pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

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