G.R. No.
212426 GAITE, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO,
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO "DODONG" NEMENZO,
JR., SR. MARY JOHN MANANZAN, PACIFICO A. AGABIN, ESTEBAN "STEVE"
SALONGA, H. HARRY L. ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR.
CAROL PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY
CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL
DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents.
x-----------------------x
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS SECRETARY
GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST REPRESENTATIVES
NERI J. COLMENARES AND CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS
PARTY-LIST REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST
REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST REPRESENTATIVE
TERRY RIDON, MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN),
REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA,
JOEL C. LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA,
AND CLEMENTE G. BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO,
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES
YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF JUSTICE
UNDERSECRETARY FRANCISCO BARAAN III, AND DND ASSISTANT SECRETARY FOR
STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR THE PHILIPPINES ON
EDCA, Respondents.
x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER LABOG,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT
EMPLOYEES (COURAGE), REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND
REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA
GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES, AND ARMANDO TEODORO,
JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality of the Enhanced Defense
Cooperation Agreement (EDCA) between the Republic of the Philippines and the United
States of America (U.S.). Petitioners allege that respondents committed grave abuse of
discretion amounting to lack or excess of jurisdiction when they entered into EDCA with the
U.S.,2 claiming that the instrument violated multiple constitutional provisions.3 In reply,
respondents argue that petitioners lack standing to bring the suit. To support the legality of
their actions, respondents invoke the 1987 Constitution, treaties, and judicial precedents. 4
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:
1
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 threats 12 and, in
the same vein, ensure that the country is adequately prepared for all national and local
emergencies arising from natural and man-made disasters.13
To be sure, this power is limited by the Constitution itself. To illustrate, the President may call
out the AFP to prevent or suppress instances of lawless violence, invasion or rebellion, 14 but
not suspend the privilege of the writ of habeas corpus for a period exceeding 60 days, or place
the Philippines or any part thereof under martial law exceeding that same span. In the exercise
of these powers, the President is also duty-bound to submit a report to Congress, in person or
in writing, within 48 hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus; and Congress may in turn revoke the proclamation or
suspension. The same provision provides for the Supreme Court's review of the factual basis
for the proclamation or suspension, as well as the promulgation of the decision within 30 days
from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ in the conduct of foreign
relations.15 Since every state has the capacity to interact with and engage in relations with
other 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
2
The responsibility of the President when it comes to treaties and international agreements
under the present Constitution is therefore shared with the Senate. This shared role,
petitioners claim, is bypassed by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
A. U.S. takeover of Spanish colonization and its military bases, and the transition to
Philippine independence
The presence of the U.S. military forces in the country can be traced to their pivotal victory in
the 1898 Battle of Manila Bay during the Spanish-American War.24 Spain relinquished its
sovereignty over the Philippine Islands in favor of the U.S. upon its formal surrender a few
months later.25 By 1899, the Americans had consolidated a military administration in the
archipelago.26
When it became clear that the American forces intended to impose colonial control over the
Philippine Islands, General Emilio Aguinaldo immediately led the Filipinos into an all-out war
against the U.S.27 The Filipinos were ultimately defeated in the Philippine-American War,
which lasted until 1902 and led to the downfall of the first Philippine Republic.28 The Americans
henceforth began to strengthen their foothold in the country. 29 They took over and expanded
the former Spanish Naval Base in Subic Bay, Zambales, and put up a cavalry post called Fort
Stotsenberg in Pampanga, now known as Clark Air Base.30
When talks of the eventual independence of the Philippine Islands gained ground, the U.S.
manifested the desire to maintain military bases and armed forces in the country. 31 The U.S.
Congress later enacted the Hare-Hawes-Cutting Act of 1933, which required that the proposed
constitution of an independent Philippines recognize the right of the U.S. to maintain the latter's
armed forces and military bases.32 The Philippine Legislature rejected that law, as it also gave
the U.S. the power to unilaterally designate any part of Philippine territory as a permanent
military or naval base of the U.S. within two years from complete independence. 33
The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie Act or the
Philippine Independence Act of 1934. Compared to the old Hare-Hawes-Cutting Act, the new
law provided for the surrender to the Commonwealth Government of "all military and other
reservations" of the U.S. government in the Philippines, except "naval reservations and
refueling stations."34 Furthermore, the law authorized the U.S. President to enter into
negotiations for the adjustment and settlement of all questions relating to naval reservations
and fueling stations within two years after the Philippines would have gained
independence.35 Under the Tydings-McDuffie Act, the U.S. President would proclaim the
American withdrawal and surrender of sovereignty over the islands 10 years after the
inauguration of the new government in the Philippines.36 This law eventually led to the
promulgation of the 1935 Philippine Constitution.
The original plan to surrender the military bases changed. 37 At the height of the Second World
War, the Philippine and the U.S. Legislatures each passed resolutions authorizing their
respective Presidents to negotiate the matter of retaining military bases in the country after the
planned withdrawal of the U.S.38 Subsequently, in 1946, the countries entered into the Treaty
of General Relations, in which the U.S. relinquished all control and sovereignty over the
Philippine Islands, except the areas that would be covered by the American military bases in
the country.39 This treaty eventually led to the creation of the post-colonial legal regime on
which would hinge the continued presence of U.S. military forces until 1991: the Military Bases
Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, and the Mutual
Defense Treaty (MDT) of 1951.40
B. Former legal regime on the presence of U.S. armed forces in the territory of an
independent Philippines (1946-1991)
Soon after the Philippines was granted independence, the two countries entered into their first
military arrangement pursuant to the Treaty of General Relations - the 1947 MBA.41 The
Senate concurred on the premise of "mutuality of security interest," 42 which provided for the
presence and operation of 23 U.S. military bases in the Philippines for 99 years or until the
year 2046.43 The treaty also obliged the Philippines to negotiate with the U.S. to allow the latter
to expand the existing bases or to acquire new ones as military necessity might require. 44
A number of significant amendments to the 1947 MBA were made.45 With respect to its
duration, the parties entered into the Ramos-Rusk Agreement of 1966, which reduced the term
of the treaty from 99 years to a total of 44 years or until 1991.46 Concerning the number of U.S.
military bases in the country, the Bohlen-Serrano Memorandum of Agreement provided for the
return to the Philippines of 17 U.S. military bases covering a total area of 117,075
hectares.47 Twelve years later, the U.S. returned Sangley Point in Cavite City through an
exchange of notes.48 Then, through the Romulo-Murphy Exchange of Notes of 1979, the
parties agreed to the recognition of Philippine sovereignty over Clark and Subic Bases and the
reduction of the areas that could be used by the U.S. military.49 The agreement also provided
for the mandatory review of the treaty every five years.50 In 1983, the parties revised the 1947
MBA through the Romualdez-Armacost Agreement.51 The revision pertained to the operational
use of the military bases by the U.S. government within the context of Philippine
sovereignty,52 including the need for prior consultation with the Philippine government on the
former' s use of the bases for military combat operations or the establishment of long-range
missiles.53
Pursuant to the legislative authorization granted under Republic Act No. 9, 54 the President also
entered into the 1947 Military Assistance Agreement55 with the U.S. This executive agreement
established the conditions under which U.S. military assistance would be granted to the
Philippines,56 particularly the provision of military arms, ammunitions, supplies, equipment,
vessels, services, and training for the latter's defense forces. 57 An exchange of notes in 1953
made it clear that the agreement would remain in force until terminated by any of the parties. 58
3
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 Philippine 60 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 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
4
 C. Whether the provisions under EDCA are consistent with the Constitution, as
well as with existing laws and treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have been satisfied
Petitioners are hailing this Court's power of judicial review in order to strike down EDCA for
violating the Constitution. They stress that our fundamental law is explicit in prohibiting the
presence of foreign military forces in the country, except under a treaty concurred in by the
Senate. Before this Court may begin to analyze the constitutionality or validity of an official act
of a coequal branch of government, however, petitioners must show that they have satisfied all
the essential requisites for judicial review.93
Distinguished from the general notion of judicial power, the power of judicial review specially
refers to both the authority and the duty of this Court to determine whether a branch or an
instrumentality of government has acted beyond the scope of the latter's constitutional
powers.94 As articulated in Section 1, Article VIII of the Constitution, the power of judicial
review involves the power to resolve cases in which the questions concern the constitutionality
or validity of any treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation.95 In Angara v. Electoral
Commission, this Court exhaustively discussed this "moderating power" as part of the system
of checks and balances under the Constitution. In our fundamental law, the role of the Court is
to determine whether a branch of government has adhered to the specific restrictions and
limitations of the latter's power:96
The separation of powers is a fundamental principle in our system of government. It obtains
not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction, and is
supreme within its own sphere. But it does not follow from the fact that the three powers are
to be kept separate and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has provided for an
elaborate system of checks and balances to secure coordination in the workings of the
various departments of the government. x x x. And the judiciary in turn, with the Supreme
Court as the final arbiter, effectively checks the other departments in the exercise of its
power to determine the law, and hence to declare executive and legislative acts void if
violative of the Constitution.
xxxx
As any human production, our Constitution is of course lacking perfection and perfectibility,
but as much as it was within the power of our people, acting through their delegates to so
provide, that instrument which is the expression of their sovereignty however limited, has
established a republican government intended to operate and function as a harmonious
whole, under a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers and agencies. If
these restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course of
government along constitutional channels, for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment, and the principles of
good government mere political apothegms. Certainly, the limitations and restrictions
embodied in our Constitution are real as they should be in any living constitution. x x x. In our
case, this moderating power is granted, if not expressly, by clear implication from section 2 of
article VIII of [the 1935] Constitution.
The Constitution is a definition of the powers of government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality
of the judiciary as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which that instrument secures and
guarantees 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
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.
5
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 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
6
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, petitioners 122 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 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
7
participate in the exercise of the powers of the institution of which they are
members.135 Legislators have the standing "to maintain inviolate the prerogatives, powers, and
privileges vested by the Constitution in their office and are allowed to sue to question the
validity of any official action, which they claim infringes their prerogatives as legislators." 136 As
legislators, they must clearly show that there was a direct injury to their persons or the
institution to which they belong.137
As correctly argued by respondent, the power to concur in a treaty or an international
agreement is an institutional prerogative granted by the Constitution to the Senate, not to the
entire Legislature. In Pimentel v. Office of the Executive Secretary, this Court did not recognize
the standing of one of the petitioners therein who was a member of the House of
Representatives. The petition in that case sought to compel the transmission to the Senate for
concurrence of the signed text of the Statute of the International Criminal Court. Since that
petition invoked the power of the Senate to grant or withhold its concurrence in a treaty
entered into by the Executive Department, only then incumbent Senator Pimentel was allowed
to assert that authority of the Senate of which he was a member.
Therefore, none of the initial petitioners in the present controversy has the standing to
maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act of the Executive for the
following reasons.
In any case, petitioners raise issues involving matters of transcendental importance.
Petitioners138 argue that the Court may set aside procedural technicalities, as the present
petition tackles issues that are of transcendental importance. They point out that the matter
before us is about the proper exercise of the Executive Department's power to enter into
international agreements in relation to that of the Senate to concur in those agreements. They
also assert that EDCA would cause grave injustice, as well as irreparable violation of the
Constitution and of the Filipino people's rights.
The OSG, on the other hand, insists139 that petitioners cannot raise the mere fact that the
present petitions involve matters of transcendental importance in order to cure their inability to
comply with the constitutional requirement of standing. Respondent bewails the overuse of
"transcendental importance" as an exception to the traditional requirements of constitutional
litigation. It stresses that one of the purposes of these requirements is to protect the Supreme
Court from unnecessary litigation of constitutional questions.
In a number of cases,140 this Court has indeed taken a liberal stance towards the requirement
of legal standing, especially when paramount interest is involved. Indeed, when those who
challenge the official act are able to craft an issue of transcendental significance to the people,
the Court may exercise its sound discretion and take cognizance of the suit. It may do so in
spite of the inability of the petitioners to show that they have been personally injured by the
operation of a law or any other government act.
While this Court has yet to thoroughly delineate the outer limits of this doctrine, we emphasize
that not every other case, however strong public interest may be, can qualify as an issue of
transcendental importance. Before it can be impelled to brush aside the essential requisites for
exercising its power of judicial review, it must at the very least consider a number of factors: (1)
the character of the funds or other assets involved in the case; (2) the presence of a clear case
of disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party that has a more direct
and specific interest in raising the present questions.141
An exhaustive evaluation of the memoranda of the parties, together with the oral arguments,
shows that petitioners have presented serious constitutional issues that provide ample
justification for the Court to set aside the rule on standing. The transcendental importance of
the issues presented here is rooted in the Constitution itself. Section 25, Article XVIII thereof,
cannot be any clearer: there is a much stricter mechanism required before foreign military
troops, facilities, or bases may be allowed in the country. The DFA has already confirmed to
the U.S. Embassy that "all internal requirements of the Philippines x x x have already been
complied with."142 It behooves the Court in this instance to take a liberal stance towards the
rule on standing and to determine forthwith whether there was grave abuse of discretion on the
part of the Executive Department.
We therefore rule that this case is a proper subject for judicial review.
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
8
This divide continued throughout the different versions of the Philippine Constitution and
specifically vested the supreme executive power in the Governor-General of the
Philippines,145 a position inherited by the President of the Philippines when the country
attained independence. One of the principal functions of the supreme executive is the
responsibility for the faithful execution of the laws as embodied by the oath of office.146 The
oath of the President prescribed by the 1987 Constitution reads thus:
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as
President (or Vice-President or Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and consecrate myself to the service
of the Nation. So help me God. (In case of affirmation, last sentence will be
omitted.)147 (Emphases supplied)
This Court has interpreted the faithful execution clause as an obligation imposed on the
President, and not a separate grant of power.148 Section 1 7, Article VII of the Constitution,
expresses this duty in no uncertain terms and includes it in the provision regarding the
President's power of control over the executive department, viz:
The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not explicitly require this oath
from the President. In the 1973 Constitution, for instance, the provision simply gives the
President control over the ministries.149 A similar language, not in the form of the President's
oath, was present in the 1935 Constitution, particularly in the enumeration of executive
functions.150 By 1987, executive power was codified not only in the Constitution, but also in the
Administrative Code:151
SECTION 1. Power of Control. - The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.
(Emphasis supplied)
Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is
intimately related to the other executive functions. These functions include the faithful
execution of the law in autonomous regions;152 the right to prosecute crimes;153 the
implementation of transportation projects;154 the duty to ensure compliance with treaties,
executive agreements and executive orders;155 the authority to deport undesirable
aliens;156 the conferment of national awards under the President's jurisdiction; 157 and the
overall administration and control of the executive department. 158
These obligations are as broad as they sound, for a President cannot function with crippled
hands, but must be capable of securing the rule of law within all territories of the Philippine
Islands and be empowered to do so within constitutional limits. Congress cannot, for instance,
limit or take over the President's power to adopt implementing rules and regulations for a law it
has enacted.159
More important, this mandate is self-executory by virtue of its being inherently executive in
nature.160 As Justice Antonio T. Carpio previously wrote,161
[i]f the rules are issued by the President in implementation or execution of self-executory
constitutional powers vested in the President, the rule-making power of the President is not a
delegated legislative power. The most important self-executory constitutional power of the
President is the President's constitutional duty and mandate to "ensure that the laws be
faithfully executed." The rule is that the President can execute the law without any delegation
of power from the legislature.
The import of this characteristic is that the manner of the President's execution of the
law, even if not expressly granted by the law, is justified by necessity and limited only
by law, since the President must "take necessary and proper steps to carry into
execution the law."162 Justice George Malcolm states this principle in a grand manner: 163
The executive should be clothed with sufficient power to administer efficiently the affairs of
state. He should have complete control of the instrumentalities through whom his responsibility
is discharged. It is still true, as said by Hamilton, that "A feeble executive implies a feeble
execution of the government. A feeble execution is but another phrase for a bad execution;
and a government ill executed, whatever it may be in theory, must be in practice a bad
government." The mistakes of State governments need not be repeated here.
xxxx
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
9
defensive capabilities, which could include forging alliances with states that hold a common
interest with the Philippines or bringing an international suit against an offending state.
The context drawn in the analysis above has been termed by Justice Arturo D. Brion's
Dissenting Opinion as the beginning of a "patent misconception." 165 His dissent argues that
this approach taken in analyzing the President's role as executor of the laws is preceded by
the duty to preserve and defend the Constitution, which was allegedly overlooked.166
In arguing against the approach, however, the dissent grossly failed to appreciate the nuances
of the analysis, if read holistically and in context. The concept that the President cannot
function with crippled hands and therefore can disregard the need for Senate concurrence in
treaties167 was never expressed or implied. Rather, the appropriate reading of the preceding
analysis shows that the point being elucidated is the reality that the President's duty to execute
the laws and protect the Philippines is inextricably interwoven with his foreign affairs powers,
such that he must resolve issues imbued with both concerns to the full extent of his powers,
subject only to the limits supplied by law. In other words, apart from an expressly mandated
limit, or an implied limit by virtue of incompatibility, the manner of execution by the President
must be given utmost deference. This approach is not different from that taken by the Court in
situations with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the President authority to bypass
constitutional safeguards and limits. In fact, it specifies what these limitations are, how these
limitations are triggered, how these limitations function, and what can be done within the
sphere of constitutional duties and limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that the
foreign relations power of the President should not be interpreted in isolation.168 The analysis
itself demonstrates how the foreign affairs function, while mostly the President's, is shared in
several instances, namely in Section 2 of Article II on the conduct of war; Sections 20 and 21
of Article VII on foreign loans, treaties, and international agreements; Sections 4(2) and 5(2)(a)
of Article VIII on the judicial review of executive acts; Sections 4 and 25 of Article XVIII on
treaties and international agreements entered into prior to the Constitution and on the
presence of foreign military troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the relationship between the two major
presidential functions and the role of the Senate in it.
This approach of giving utmost deference to presidential initiatives in respect of foreign affairs
is not novel to the Court. The President's act of treating EDCA as an executive agreement is
not the principal power being analyzed as the Dissenting Opinion seems to suggest. Rather,
the preliminary analysis is in reference to the expansive power of foreign affairs. We have long
treated this power as something the Courts must not unduly restrict. As we stated recently
in Vinuya v. Romulo:
To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements.
However, the question whether the Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our 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 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
10
 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.
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
11
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)
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
12
provision is "neither plain, nor that simple."188 To buttress its disagreement, the dissent states
that the provision refers to a historical incident, which is the expiration of the 1947
MBA.189 Accordingly, this position requires questioning the circumstances that led to the
historical event, and the meaning of the terms under Article XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis is not inapplicable
just because a provision has a specific historical context. In fact, every provision of the
Constitution has a specific historical context. The purpose of constitutional and statutory
construction is to set tiers of interpretation to guide the Court as to how a particular provision
functions. Verba legis is of paramount consideration, but it is not the only consideration. As this
Court has often said:
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
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
13
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)
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
14
should read. "No treaty or international agreement EXCEPT EXECUTIVE AGREEMENTS shall
be valid and effective."
FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in Eastern Sea
Trading] might help clarify this:
The right of the executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the
earliest days of our history, we have entered into executive agreements covering such subjects
as commercial and consular relations, most favored nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of this has never been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been concluded by the
executive of various countries under the Act of Congress of March 3, 1881 (21 Stat. 502) . .
. International agreements involving political issues or changes of national policy and
those involving international agreements of a permanent character usually take the form
of treaties. But international agreements embodying adjustments of detail, carrying out well
established national policies and traditions and those involving arrangements of a more
or less temporary nature usually take the form of executive agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say international agreements
which need concurrence by at least two-thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are executive agreements
essentially but which are proceeding from the authorization of Congress. If that is our
understanding, then I am willing to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not need
subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the definition of
"executive agreements" and that would make unnecessary any explicit proviso on the
matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of "executive agreements" because I heard
that these executive agreements must rely on treaties. In other words, there must first be
treaties.
MR. CONCEPCION: No, I was speaking about the common use, as executive agreements
being the implementation of treaties, details of which do not affect the sovereignty of the State.
MR. GUINGONA: But what about the matter of permanence, Madam President? Would 99
years be considered permanent? What would be the measure of permanency? I do not
conceive of a treaty that is going to be forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether this type of agreement
should be included in a provision of the Constitution requiring the concurrence of Congress.
MR. GUINGONA: It depends on the concept of the executive agreement of which I am not
clear. If the executive agreement partakes of the nature of a treaty, then it should also be
included.
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within the power
of the Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words "international
agreements" would include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one question. Do we take it, therefore,
that as far as the Committee is concerned, the term "international agreements" does not
include the term "executive agreements" as read by the Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)
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.
15
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 Senate 215 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 territory 221
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 Board 224
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.
16
 a. Treaties are formal contracts between the Philippines and other States-
parties, which are in the nature of international agreements, and also of
municipal laws in the sense of their binding nature.226
b. International agreements are similar instruments, the provisions of which
may require the ratification of a designated number of parties thereto. These
agreements involving political issues or changes in national policy, as well
as those involving international agreements of a permanent character,
usually take the form of treaties. They may also include commercial
agreements, which are executive agreements essentially, but which proceed
from previous authorization by Congress, thus dispensing with the
requirement of concurrence by the Senate.227
c. Executive agreements are generally intended to implement a treaty
already enforced or to determine the details of the implementation thereof
that do not affect the sovereignty of the State.228
2. Treaties and international agreements that cannot be mere executive agreements
must, by constitutional decree, be concurred in by at least two-thirds of the Senate.
3. However, an agreement - the subject of which is the entry of foreign military troops,
bases, or facilities - is particularly restricted. The requirements are that it be in the
form of a treaty concurred in by the Senate; that when Congress so requires, it be
ratified by a majority of the votes cast by the people in a national referendum held for
that purpose; and that it be recognized as a treaty by the other contracting State.
4. Thus, executive agreements can continue to exist as a species of international
agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her
constitutional authority and discretion when she chose to enter into the RP-U.S. Non-
Surrender Agreement in the form of an executive agreement, instead of a treaty, and in
ratifying the agreement without Senate concurrence. The Court en banc discussed this intrinsic
presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of
the nature of a treaty; hence, it must be duly concurred in by the Senate. x x x x. Pressing its
point, petitioner submits that the subject of the Agreement does not fall under any of the
subject-categories that xx x may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and settlement of claims.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on
the propriety of entering, on a given subject, into a treaty or an executive agreement as
an instrument of international relations. The primary consideration in the choice of the form
of agreement is the parties' intent and desire to craft an international agreement in the
form they so wish to further their respective interests. Verily, the matter of form takes a
back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or
an executive agreement, as the parties in either international agreement each labor under
the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact that - save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution - when a treaty is required, the
Constitution does not classify any subject, like that involving political issues, to be in
the form of, and ratified as, a treaty. What the Constitution merely prescribes is that treaties
need the concurrence of the Senate by a vote defined therein to complete the ratification
process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in the external affairs of
the nation is, as Bayan would put it, "executive altogether." The right of the President to
enter into or 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
17
in cases in which the Constitution or a statute requires otherwise. Rather, in view of the vast
constitutional powers and prerogatives granted to the President in the field of foreign affairs,
the task of the Court is to determine whether the international agreement is consistent with the
applicable limitations.
6. Executive agreements may cover the matter of foreign military forces if it merely
involves detail adjustments.
The practice of resorting to executive agreements in adjusting the details of a law or a treaty
that already deals with the presence of foreign military forces is not at all unusual in this
jurisdiction. In fact, the Court has already implicitly acknowledged this practice in Lim v.
Executive Secretary.231 In that case, the Court was asked to scrutinize the constitutionality of
the Terms of Reference of the Balikatan 02-1 joint military exercises, which sought to
implement the VFA. Concluded in the form of an executive agreement, the Terms of Reference
detailed the coverage of the term "activities" mentioned in the treaty and settled the matters
pertaining to the construction of temporary structures for the U.S. troops during the activities;
the duration and location of the exercises; the number of participants; and the extent of and
limitations on the activities of the U.S. forces. The Court upheld the Terms of Reference as
being consistent with the VFA. It no longer took issue with the fact that the Balikatan Terms of
Reference was not in the form of a treaty concurred in by the Senate, even if it dealt with the
regulation of the activities of foreign military forces on Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive agreement
in an attempt to adjust the details of a provision of the VFA. The Philippines and the U.S.
entered into the Romulo-Kenney Agreement, which undertook to clarify the detention of a U.S.
Armed Forces member, whose case was pending appeal after his conviction by a trial court for
the crime of rape. In testing the validity of the latter agreement, the Court precisely alluded to
one of the inherent limitations of an executive agreement: it cannot go beyond the terms of the
treaty it purports to implement. It was eventually ruled that the Romulo-Kenney Agreement was
"not in accord" with the VFA, since the former was squarely inconsistent with a provision in the
treaty requiring that the detention be "by Philippine authorities." Consequently, the Court
ordered the Secretary of Foreign Affairs to comply with the VFA and "forthwith negotiate with
the United States representatives for the appropriate agreement on detention facilities under
Philippine authorities as provided in Art. V, Sec. 10 of the VFA. "233
Culling from the foregoing discussions, we reiterate the following pronouncements to guide us
in resolving the present controversy:
1. Section 25, Article XVIII of the Constitution, contains stringent requirements that
must be fulfilled by the international agreement allowing the presence of foreign
military bases, troops, or facilities in the Philippines: (a) the agreement must be in the
form of a treaty, and (b) it must be duly concurred in by the Senate.
2. If the agreement is not covered by the above situation, then the President may
choose the form of the agreement (i.e., either an executive agreement or a treaty),
provided that the agreement dealing with foreign military bases, troops, or facilities is
not the principal agreement that first allows their entry or presence in the Philippines.
3. The executive agreement must not go beyond the parameters, limitations, and
standards set 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
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."
18
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:
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.
19
troops and personnel are authorized to conduct activities that promote the goal of maintaining
and developing their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA merely implement the MDT.
According to them, the treaty does not specifically authorize the entry of U.S. troops in the
country in order to maintain and develop the individual and collective capacities of both the
Philippines and the U.S. to resist an armed attack. They emphasize that the treaty was
concluded at a time when there was as yet no specific constitutional prohibition on the
presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the VFA. They assert
that the agreement covers only short-term or temporary visits of U.S. troops "from time to time"
for the specific purpose of combined military exercises with their Filipino counterparts. They
stress that, in contrast, U.S. troops are allowed under EDCA to perform
activities beyond combined military exercises, such as those enumerated in Articles 111(1)
and IV(4) thereof. Furthermore, there is some degree of permanence in the presence of U.S.
troops in the country, since the effectivity of EDCA is continuous until terminated. They
proceed to argue that while troops have a "rotational" presence, this scheme in fact fosters
their permanent presence.
a. Admission of U.S. military and civilian personnel into Philippine territory is already allowed
under the VFA
We shall first deal with the recognition under EDCA of the presence in the country of three
distinct classes of individuals who will be conducting different types of activities within the
Agreed Locations: (1) U.S. military personnel; (2) U.S. civilian personnel; and (3) U.S.
contractors. The agreement refers to them as follows:
"United States personnel" means United States military and civilian personnel
temporarily in the territory of the Philippines in connection with activities approved by the
Philippines, as those terms are defined in the VFA.252
"United States forces" means the entity comprising United States personnel and
all property, equipment, and materiel of the United States Armed Forces present in the
territory of the Philippines.253
"United States contractors" means companies and firms, and their employees, under
contract or subcontract to or on behalf of the United States Department of Defense. United
States contractors are not included as part of the definition of United States personnel in this
Agreement, including within the context of the VFA.254
United States forces may contract for any materiel, supplies, equipment, and
services (including construction) to be furnished or undertaken in the territory of the
Philippines without restriction as to choice of contractor, supplier, or person who
provides such materiel, supplies, equipment, or services. Such contracts shall be solicited,
awarded, and administered in accordance with the laws and regulations of the United
States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that the agreement does not deal
with the entry into the country of U.S. personnel and contractors per se. While Articles
I(l)(b)256 and II(4)257 speak of "the right to access and use" the Agreed Locations, their
wordings indicate the presumption that these groups have already been allowed entry into
Philippine territory, for which, unlike the VFA, EDCA has no specific provision. Instead, Article
II of the latter simply alludes to the VFA in describing U.S. personnel, a term defined under
Article I of the treaty as follows:
As used in this Agreement, "United States personnel" means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government. Within this definition:
1. The term "military personnel" refers to military members of the United
States Army, Navy, Marine Corps, Air Force, and Coast Guard.
2. The term "civilian personnel" refers to individuals who are neither
nationals of nor ordinarily resident in the Philippines and who
are employed by the United States armed forces or who are
accompanying the United States armed forces, such as employees of
the American Red Cross and the United Services Organization.258
Article II of EDCA must then be read with Article III of the VFA, which provides for the entry
accommodations to be accorded to U.S. military and civilian personnel:
1. The Government of the Philippines shall facilitate the admission of United
States personnel and their departure from the Philippines in connection with
activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa
regulations upon 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)
20
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.
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

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.
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

Consequently, it is neither mandatory nor obligatory on the part of the Philippines to admit U.S. xxx
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 Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
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
Noting that from time to time elements of the United States armed forces may visit the
latter must comply with our visa and passport regulations 262 and prove that they are not subject
Republic of the Philippines;
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 Considering that cooperation between the United States and the Republic of the
Philippines promotes their common security interests;
In the same vein, the President may exercise the plenary power to expel or deport U.S.
contractors265 as may be necessitated by national security, public safety, public health, public xxx
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 Act 267 and the Data Privacy Act.268 In
21
 Article I - Definitions
As used in this Agreement, "United States personnel" means United States military and civilian
personnel temporarily in the Philippines in connection with activities approved by the
Philippine Government. Within this definition: xx x
Article II - Respect for Law
It is the duty of United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this
agreement, and, in particular, from any political activity in the Philippines. The Government of
the United States shall take all measures within its authority to ensure that this is done.
Article VII - Importation and Exportation
1. United States Government equipment, materials, supplies, and other property imported
into or acquired in the Philippines by or on behalf of the United States armed forces in
connection with activities to which this agreement applies, shall be free of all Philippine
duties, taxes and other similar charges. Title to such property shall remain with the United
States, which may remove such property from the Philippines at any time, free from export
duties, taxes, and other similar charges. x x x.
Article VIII - Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines
upon approval of the Government of the Philippines in accordance with procedures stipulated
in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The movement of vessels
shall be in accordance with international custom and practice governing such vessels,
and such agreed implementing arrangements as necessary. x x x (Emphases Supplied)
Manifest in these provisions is the abundance of references to the creation of further
"implementing arrangements" including the identification of "activities [to be] approved by the
Philippine Government." To determine the parameters of these implementing arrangements
and activities, we referred to the content, purpose, and framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both countries shall engage
in joint activities, so that they can maintain and develop their defense capabilities. The wording
itself evidently invites a reasonable construction that the joint activities shall
involve joint military trainings, 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:
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
22
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 equipment, supplies, and materiel; deployment
of forces and materiel; and such other activities as the Parties may agree 280
3. Exercise of operational control over the Agreed Locations for construction activities and
other types of activity, including alterations and improvements thereof 281
4. Exercise of all rights and authorities within the Agreed Locations that are necessary for their
operational control or defense, including the adoption of apfropriate measures to protect U.S.
forces and contractors282
5. Use of water, electricity, and other public utilities 283
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 purpose 284
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
23
 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.
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
24
at its provisions on the effectivity period. EDCA does not grant permanent bases, but rather
temporary rotational access to facilities for efficiency. As Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes rotational access to facilities of
the Armed Forces of the Philippines – but not permanent bases which are prohibited under the
Philippine Constitution - with the result of reducing response time should an external threat
from a common adversary crystallize.290
EDCA is far from being permanent in nature compared to the practice of states as shown in
other defense cooperation agreements. For example, Article XIV(l) of the U.S.-Romania
defense agreement provides the following:
This Agreement is concluded for an indefinite period and shall enter into force in
accordance with the internal laws of each Party x x x. (emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:
This Agreement has been concluded for an indefinite period of time. It may be terminated
by written notification by either Party and in that event it terminates 2 years after the receipt of
the notification. (emphasis supplied)
Section VIII of US.-Denmark Mutual Support Agreement similarly provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes A and B,
shall become effective on the date of the last signature affixed below and shall remain in
force until terminated by the Parties, provided that it may be terminated by either Party upon
180 days written notice of its intention to do so to the other Party. (emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides a
longer initial term:
3. This Agreement shall have an initial term of 25 years and thereafter shall continue in
force, but may be terminated by either Party at any time upon one year's written notice to the
other Party through diplomatic channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term less than
half of that is provided in the latter agreement. This means that EDCA merely follows the
practice of other states in not specifying a non-extendible maximum term. This practice,
however, does not automatically grant a badge of permanency to its terms. Article XII(4) of
EDCA provides very clearly, in fact, that its effectivity is for an initial term of 10 years, which is
far shorter than the terms of effectivity between the U.S. and other states. It is simply illogical
to conclude that the initial, extendible term of 10 years somehow gives EDCA provisions a
permanent character.
The reasoning behind this interpretation is rooted in the constitutional role of the President
who, as Commander-in-Chief of our armed forces, is the principal strategist of the nation and,
as such, duty-bound to defend our national sovereignty and territorial integrity; 291 who, as chief
architect of our foreign relations, is the head policymaker tasked to assess, ensure, and protect
our national security and interests;292 who holds the most comprehensive and most
confidential information about foreign countries293 that may affect how we conduct our external
affairs; and who has unrestricted access to highly classified military intelligence data 294 that
may threaten the life of the nation. Thus, if after a geopolitical prognosis of situations affecting
the country, a belief is engendered that a much longer period of military training is needed, the
President must be given ample discretion to adopt necessary measures including the flexibility
to set an extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we acknowledge that
the President may not always be able to candidly and openly discuss the complete situation
being faced by the nation. The Chief Executive's hands must not be unduly tied, especially if
the situation calls for crafting programs and setting timelines for approved activities. These
activities may be necessary for maintaining and developing our capacity to resist an armed
attack, ensuring our national sovereignty and territorial integrity, and securing our national
interests. If the Senate decides that the President is in the best position to define in operational
terms the meaning of temporary in relation to the visits, considered individually or in their
totality, the Court must respect that policy decision. If the Senate feels that there is no need to
set a time limit to these visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in regard to the extent of the
"temporary" nature of the visits of U.S. personnel does not suggest that the duration to which
the President may agree is unlimited. Instead, the boundaries of the meaning of the
term temporary in Article I of the treaty must be measured depending on the purpose of each
visit or activity.295 That purpose must be analyzed on a case-by-case basis depending on the
factual circumstances surrounding the conclusion of the implementing agreement. While the
validity of the President's actions will be judged under less stringent standards, the power of
this Court to determine whether there was grave abuse of discretion remains unimpaired.
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:
25
 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
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
26
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
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 argue 320 that
EDCA is in fact an implementation of the new defense policy of the U.S. According to them,
this policy was not what was originally intended either by the MDT or by the VFA.
On these points, the Court is not persuaded.
The similar activities cited by petitioners321 simply show that under the MBA, the U.S. had the
right to construct, operate, maintain, utilize, occupy, garrison, and control the bases. The so-
called parallel provisions of EDCA allow only operational control over the Agreed Locations
specifically for construction activities. They do not allow the overarching power to operate,
maintain, utilize, occupy, garrison, and control a base with full discretion. EDCA in fact limits
the rights of the U.S. in respect of every activity, including construction, by giving the MDB and
the SEB the power to determine the details of all activities such as, but not limited to,
operation, maintenance, utility, occupancy, garrisoning, and control.322
The "species of ownership" on the other hand, is distinguished by the nature of the property.
For immovable property constructed or developed by the U.S., EDCA expresses that
ownership will automatically be vested to the Philippines. 323 On the other hand, for movable
properties brought into the Philippines by the U.S., EDCA provides that ownership is retained
by the latter. In contrast, the MBA dictates that the U.S. retains ownership over immovable and
movable properties.
To our mind, both EDCA and the MBA simply incorporate what is already the law of the land in
the Philippines. The Civil Code's provisions on ownership, as applied, grant the owner of a
movable property full rights over that property, even if located in another person's property. 324
The parallelism, however, ends when the situation involves facilities that can be considered
immovable. Under the MBA, the U.S. retains ownership if it paid for the facility. 325 Under
EDCA, an immovable is owned by the Philippines, even if built completely on the back of U.S.
funding.326 This is consistent with the constitutional prohibition on foreign land ownership. 327
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.
27
 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 appurtenances to such bases, and the rights
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 deem necessary to retain for the mutual protection of
occupied by American bases. In contrast, the U.S. under EDCA does not enjoy any such right the Republic of the Philippines and of the United
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
1947 MBA, Art. I(1):
The Government of the Republic of
the Philippines (hereinafter referred to as the
Philippines) grants to the Government of the United
States of America (hereinafter referred to as the
United States) the right to retain the use of the
bases in the Philippines listed in Annex A attached
hereto.
1947 MBA, Art. XVII(2):
All buildings and structures which are erected by
the United States in the bases shall be the property
of the United States and may be removed by
it before the expiration of this Agreement or the
earlier relinquishment of the base on which the
structures are situated. There shall be no obligation
on the part of the Philippines or of the United States
to rebuild or repair any destruction or damage inflicted
from any cause whatsoever on any of the said
buildings or structures owned or used by the United
States in the bases. x x x x.
1946 Treaty of Gen. Relations, Art. I:
The United States of America agrees to withdraw
and surrender, and does hereby withdraw and
surrender, all rights of possession, supervision,
jurisdiction, control or sovereignty existing and
exercised by the United States of America in and EDCA, Art. V:
over the territory and the people of the Philippine
Islands, except the use of such bases, necessary 1. The Philippines shall retain ownership of and
title to Agreed Locations.
incident thereto, as the United States of America, by
agreement with the Republic of the Philippines may
xxxx
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
EDCA Philippines.Permanent buildings constructed by
United States forces become the property of the
EDCA, preamble: Philippines, once constructed, but shall be used by
United States forces until no longer required by
Affirming that the Parties share an understanding for United States forces.
the United States not to establish a permanent
military presence or base in the territory of the
Philippines;
xxxx 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
Recognizing that all United States access to and use expansion of the existing bases or to acquire additional bases. In EDCA, U.S. access is purely
of facilities and areas will be at the invitation of the at the invitation of the Philippines.
Philippines and with full respect for the Philippine
Constitution and Philippine laws;
1947 MBA/ 1946 Treaty of General Relations EDCA
xxxx
1947 MBA, Art.I(3): EDCA, preamble:
EDCA, Art. II(4):
The Philippines agree to enter into Recognizing that all United States access to and use
negotiations with the United States at the latter's of facilities and areas will be at the invitation of the
"Agreed Locations" means facilities and areas that to permit the United States to expand such
request, Philippines and with full respect for the Philippine
are provided by the Government of the bases, to exchange such bases for other bases, to Constitution and Philippine laws;
Philippines through the AFP and that United States
acquire additional bases, or relinquish rights to
forces, United States contractors, and others asbases, as any of such exigencies may be required by
mutually agreed, shall have the right to access and xxxx
military necessity.
use pursuant to this Agreement. Such Agreed
Locations may be listed in an annex to be appended EDCA. Art. II(4):
to this Agreement, and may be further described1946
in Treaty of Gen. Relations, Art. I:
implementing arrangements.
"Agreed Locations" means facilities and areas that
The United States of America agrees to are provided by the Government of the
withdraw and surrender, and does hereby withdraw
Philippines through the AFP and that United States
and surrender, all rights of possession,
28
supervision, jurisdiction, control or forces, United States contractors, and others asupon notice to the Philippines, to use such of those States, through bilateral security
sovereignty existing and exercised by the United mutually agreed, shall have the right to accessbases
and listed in Annex B as the United States mechanisms, such as the MDB and
States of America in and over the territory and the use pursuant to this Agreement. Such Agreed determines to be required by military necessity. SEB, operational control of Agreed
people of the Philippine Islands, except the use of Locations may be listed in an annex to be appended Locations for construction
such bases, necessary appurtenances to such to this Agreement, and may be further described1947
in MBA, Art. III(1): activities and authority to undertake such
bases, and the rights incident thereto, as the United implementing arrangements. activities on, and make alterations and
States of America, by agreement with the improvements to, Agreed Locations. United States
Republic of the Philippines may deem necessary It is mutually agreed that the United Statesshall have forces shall consult on issues regarding such
to retain for the mutual protection of the Republic of the rights, power and authority within the construction, alterations, and
the Philippines and of the United States of America. x bases which are necessary for the establishment, improvements based on the Parties' shared intent
x x. use, operation and defense thereof or appropriate that the technical requirements and construction
for the control thereof and all the rights, power and standards of any such projects undertaken by or on
authority within the limits of territorial waters and behalf of United States forces should be consistent
Third, in EDCA, the Philippines is- guaranteed access over the entire area of the Agreed air space adjacent to, or in the vicinity of, the with the requirements and standards of both Parties.
Locations. On the other hand, given that the U.S. had complete control over its military bases bases which are necessary to provide access to
under the 1947 MBA, the treaty did not provide for any express recognition of the right of them, or appropriate for their control.
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. 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

No equivalent provision. EDCA, Art. III(5): 1947 MBA EDCA

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

The Philippine Designated Authority and its
authorized representative shall have access to the
The United States shall, subject to previous
entire area of the Agreed Locations. Such access With consideration of the views of the Parties,
agreement with the Philippines, have the right to use
shall be provided promptly consistent with operational the Philippines hereby authorizes and agrees that
safety and security requirements in accordance land
with and coastal sea areas of appropriate size and United States forces, United States contractors, and
agreed procedures developed by the Parties. location for periodic maneuvers, for additional vehicles, vessels, and aircraft operated by or for
staging areas, bombing and gunnery ranges, and United States forces may conduct the following
for such intermediate airfields as may be required activities with respect to Agreed Locations: training;
Fourth, in the bases agreement, the U.S. retained the right, power, and authority over the for safe and efficient air operations. Operations in transit; support and related activities; refueling of
establishment, use, operation, defense, and control of military bases, including the limits of such areas shall be carried on with due regard and aircraft; bunkering of vessels; temporary maintenance
territorial waters and air space adjacent to or in the vicinity of those bases. The only standard safeguards for the public safety. of vehicles, vessels, and aircraft; temporary
used in determining the extent of its control was military necessity. On the other hand, there is accommodation of personnel; communications;
no such grant of power or authority under EDCA. It merely allows the U.S. to exercise 1947 MBA, Art.I(2): prepositioning of equipment, supplies, and materiel;
operational control over the construction of Philippine-owned structures and facilities: deploying forces and materiel; and such other
activities as the Parties may agree.
The Philippines agrees to permit the United States,
1947 MBA EDCA upon notice to the Philippines, to use such of those
bases listed in Annex B as the United States
1947 MBA, Art.I(2): EDCA, Art. III(4): determines to be required by military necessity.

The Philippines agrees to permit the United States, The Philippines hereby grants to the United
29
 Sixth, under the MBA, the U.S. was given the right, power, and authority to control and prohibit
1947 MBA EDCA
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, Art. VII: EDCA, Art. III(2):

1947 MBA EDCA It is mutually agreed that the United States may When requested, the Designated Authority of the
employ and use for United States military forces any Philippines shall assist in facilitating transit or
1947 MBA, Art. 111(2)(c) No equivalent provision. and all public utilities, other services and temporary access by United States forces to public
facilities, airfields, ports, harbors, roads, highways, land and facilities (including roads, ports, and
Such rights, power and authority shall include, inter railroads, bridges, viaducts, canals, lakes, rivers and airfields), including those owned or controlled by local
alia, the right, power and authority: x x x x to streams in the Philippines under conditions no less governments, and to other land and facilities
control (including the right to prohibit) in so far as favorable than those that may be applicablefrom (including roads, ports, and airfields).
may be required for the efficient operation and safety time to time to the military forces of the Philippines.
of the bases, and within the limits of military
necessity, anchorages, moorings, landings,
Ninth, under EDCA, the U.S. no longer has the right, power, and authority to construct, install,
takeoffs, movements and operation of ships and
maintain, and employ any type of facility, weapon, substance, device, vessel or vehicle, or
water-borne craft, aircraft and other vehicles on
system unlike in the old treaty. EDCA merely grants the U.S., through bilateral security
water, in the air or on land comprising
mechanisms, the authority to undertake construction, alteration, or improvements on the
Philippine-owned Agreed Locations.
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
1947 MBA EDCA
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, Art. III(2)(e): EDCA, Art. III(4):

1947 MBA EDCA Such rights, power and authority shall include, inter The Philippines hereby grants to the United States,
alia, the right, power and authority: x x x x through bilateral security mechanisms, such as
1947 MBA, Art. III(2)(b): EDCA, Art. III(2): to construct, install, maintain, and employ on any the MDB and SEB, operational control of Agreed
base any type of facilities, weapons, substance, Locations for construction activities and authority to
Such rights, power and authority shall include, inter When requested, the Designated Authority of the device, vessel or vehicle on or under the ground, in undertake such activities on, and make alterations
alia, the right, power and authority: x x x x to Philippines shall assist in facilitating transit or the air or on or under the water that may be requisite and improvements to, Agreed Locations. United
improve and deepen the harbors, channels, temporary access by United States forces to public or appropriate, including meteorological systems, States forces shall consult on issues regarding such
entrances and anchorages, and to construct or land and facilities (including roads, ports, and aerial and water navigation lights, radio and radar construction, alterations, and improvements based on
maintain necessary roadsand bridges affording airfields), including those owned or controlled byapparatus
local and electronic devices, of any desired the Parties' shared intent that the technical
access to the bases. governments, and to other land and facilities power, type of emission and frequency. requirements and construction standards of any such
(including roads, ports, and airfields). projects undertaken by or on behalf of United States
forces should be consistent with the requirements and
standards of both Parties.
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 Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation
Philippine military forces enjoyed that right. No such arrangement appears in EDCA. In fact, it proceedings, real property belonging to any private person. The old military bases agreement
merely extends to U.S. forces temporary access to public land and facilities when requested: gave this right to the U.S. as seen below:

1947 MBA EDCA

30
1947 MBA, Art. XXII(l):
Whenever it is necessary to acquire by
condemnation or expropriation proceedings real
property belonging to any private
persons, associations or corporations located in
bases named in Annex A and Annex B in order to
carry out the purposes of this Agreement, the
Philippines will institute and prosecute such
condemnation or expropriation proceedings in
accordance with the laws of the Philippines. The
United States agrees to reimburse the Philippines for
all the reasonable expenses, damages and costs
therebv incurred, including the value of the property
as determined by the Court. In addition, subject to the
mutual agreement of the two Governments, the
United States will reimburse the Philippines for the
reasonable costs of transportation and removal of any
occupants displaced or ejected by reason of the
condemnation or expropriation.
Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-Philippine
nationals who are under its employ, together with their families, in connection with the
construction, maintenance, or operation of the bases. EDCA strictly adheres to the limits under
the VFA.
1947 MBA
1947 MBA, Art. XI(l):
It is mutually agreed that the United States shall
have the right to bring into the
Philippines members of the United States military
forces and the United States nationals employed
by or under a contract with the United States
together with their families, and technical
personnel of other nationalities (not being persons
excluded by the laws of the Philippines) in connection
with the construction, maintenance, or operation of
the bases. The United States shall make suitable
arrangements so that such persons may be readily
identified and their status established when necessary
No equivalent provision. by the Philippine authorities. Such persons, other than Department of Defense. United States contractors
members of the United States armed forces in are not includedas part of the definition of United
uniform, shall present their travel documents to the States personnel in this Agreement, including
appropriate Philippine authorities for visas, it being within the context of the VFA.
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.
EDCA Parenthetically, the PX store has become the cultural icon of U.S. military presence in the
country.
EDCA, Art. II:
1. "United States personnel" means United 1947 MBA EDCA
States military and civilian personneltemporarily in
1947 MBA, Art. XVIII(l): No equivalent provision.
the territory of the Philippines in connection with
activities approved by the Philippines, as those
terms are defined in the VFA. It is mutually agreed that the United States
x xx x shall have the right to establish on bases, free of
all licenses; fees; sales, excise or other taxes, or
imposts; Government agencies, including
3. "United States contractors" means companies
concessions, such as sales commissaries
and firms, and their employees, under contract or
subcontract to or on behalf of the United States and post exchanges; messes and social clubs, for
the exclusive use of the United States military
31

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
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, Tarlac 329
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."
32
By definition, Agreed Locations are
facilities and areas that are provided by the Government of the Philippines through the AFP
and that United States forces, United States contractors, and others as mutually agreed, shall
have the right to access and use pursuant to this Agreement. Such Agreed Locations may be
listed in an annex to be appended to this Agreement, and may be further described in
implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the Philippines shall retain
ownership of and title to the Agreed Locations means that EDCA is "consistent with Article II of
the VFA which recognizes Philippine sovereignty and jurisdiction over locations within
Philippine territory.333
By this interpretation, respondent acknowledges that the contention of petitioners springs from
an understanding that the Agreed Locations merely circumvent the constitutional restrictions.
Framed differently, the bone of contention is whether the Agreed Locations are, from a legal
perspective, foreign military facilities or bases. This legal framework triggers Section 25, Article
XVIII, and makes Senate concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized by the
Philippines to "conduct the following activities: "training; transit; support and related activities;
refueling of aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels and
aircraft; temporary accommodation of personnel; communications; prepositioning of
equipment, supplies and materiel; deploying forces and materiel; and such other activities as
the Parties may agree."
This creation of EDCA must then be tested against a proper interpretation of the Section 25
restriction.
d. Reasons for the constitutional requirements and legal standards for constitutionally
compatible military bases and facilities
Section 25 does not define what is meant by a "foreign military facility or base." While it
specifically alludes to U.S. military facilities and bases that existed during the framing of the
Constitution, the provision was clearly meant to apply to those bases existing at the time and
to any future facility or base. The basis for the restriction must first be deduced from the spirit
of the law, in order to set a standard for the application of its text, given the particular historical
events preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to glean, from their
collective wisdom, the intent of Section 25. Their speeches are rich with history and wisdom
and present a clear picture of what they considered in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption of the anti-bases provisions with
what purports to be an objective presentation of the historical background of the military bases
in the Philippines. Care appears, however, to have been taken to underscore the inequity in
their inception as well as their implementation, as to seriously reflect on the supposed
objectivity of the report. Pronouncements of military and civilian officials shortly after World
War II are quoted in support of the proposition on neutrality; regrettably, the implication is that
the same remains valid today, as if the world and international activity stood still for the last 40
years.
We have been given inspired lectures on the effect of the presence of the military bases
on our sovereignty - whether in its legal or political sense is not clear - and the theory
that any country with foreign bases in its territory cannot claim to be fully sovereign or
completely independent. I was not aware that the concepts of sovereignty and independence
have now assumed the totality principle, such that a willing assumption of some delimitations
in the exercise of some aspects thereof would put that State in a lower bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros and cons on the
advisability of having military bases within our shores. Most of us who, only about three
months ago, were just mulling the prospects of these varying contentions are now expected,
like armchair generals, to decide not only on the geopolitical aspects and contingent
implications of the military bases but also on their political, social, economic and cultural
impact on our national life. We are asked to answer a plethora of questions, such as: 1)
whether the bases are magnets of nuclear attack or are deterrents to such attack; 2) whether
an alliance or mutual defense treaty is a derogation of our national sovereignty; 3) whether
criticism of us by Russia, Vietnam and North Korea is outweighed by the support for us of the
ASEAN countries, the United States, South Korea, Taiwan, Australia and New Zealand; and 4)
whether the social, moral and legal problems spawned by the military bases and their
operations can be compensated by the economic benefits outlined in papers which have been
furnished recently to all of us.335
xxxx
Of course, one side of persuasion has submitted categorical, unequivocal and forceful
assertions of their positions. They are entitled to the luxury of the absolutes. We are urged
now to adopt the proposed declaration as a "golden," "unique" and "last" opportunity
for Filipinos to assert their sovereign rights. Unfortunately, I have never been enchanted
by superlatives, much less for the applause of the moment or the ovation of the hour. Nor do I
look forward to any glorious summer after a winter of political discontent. Hence, if I may join
33
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
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.
34
A few years ago, England gave the Island of Diego Garcia to the United States for the latter's
use as a naval base in the Indian Ocean. About the same time, the United States obtained
bases in Spain, Egypt and Israel. In doing so, these countries, in effect, contributed to the
launching of a preventive defense posture against possible trouble in the Middle East and in
the Indian Ocean for their own protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations, the presence of American
troops in the country is a projection of America's security interest. Enrile said that nonetheless,
they also serve, although in an incidental and secondary way, the security interest of the
Republic of the Philippines and the region. Yes, of course, Mr. Enrile also echoes the
sentiments of most of us in this Commission, namely: It is ideal for us as an independent
and sovereign nation to ultimately abrogate the RP-US military treaty and, at the right
time, build our own air and naval might.347
xxxx
Allow me to say in summation that I am for the retention of American military bases in
the Philippines provided that such an extension from one period to another shall be
concluded upon concurrence of the parties, and such extension shall be based on
justice, the historical amity of the people of the Philippines and the United States and
their common defense interest.348
SPEECH OF COMMISSIONER ALONTO349
xxxx
Madam President, sometime ago after this Commission started with this task of framing a
constitution, I read a statement of President Aquino to the effect that she is for the removal of
the U.S. military bases in this country but that the removal of the U.S. military bases should not
be done just to give way to other foreign bases. Today, there are two world superpowers, both
vying to control any and all countries which have importance to their strategy for world
domination. The Philippines is one such country.
Madam President, I submit that I am one of those ready to completely remove any
vestiges of the days of enslavement, but not prepared to erase them if to do so would
merely leave a vacuum to be occupied by a far worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our brethren in the Middle
East, in Indo-China, Central America, in South Africa - there has been escalation of war in
some of these areas because of foreign intervention which views these conflicts through the
narrow prism of the East-West conflict. The United States bases have been used as
springboards for intervention in some of these conflicts. We should not allow ourselves
to be party to the warlike mentality of these foreign interventionists. We must always be
on the side of peace – this means that we should not always rely on military solution.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
35
 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
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)
36
The Constitutional Commission eventually agreed to allow foreign military bases, troops, or
facilities, subject to the provisions of Section 25. It is thus important to read its discussions
carefully. From these discussions, we can deduce three legal standards that were articulated
by the Constitutional Commission Members. These are characteristics of any agreement that
the country, and by extension this Court, must ensure are observed. We can thereby
determine whether a military base or facility in the Philippines, which houses or is accessed by
foreign military troops, is foreign or remains a Philippine military base or facility. The legal
standards we find applicable are: independence from foreign control, sovereignty and
applicable law, and national security and territorial integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the time of the Constitution's drafting
was aimed at asserting Philippine independence from the U.S., as well as control over our
country's territory and military.
Under the Civil Code, there are several aspects of control exercised over property.
Property is classified as private or public.365 It is public if "intended for public use, such as
roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores,
roadsteads, and others of similar character[,]" or "[t]hose which belong to the State, without
being for public use, and are intended for some public service or for the development of the
national wealth. "366
Quite clearly, the Agreed Locations are contained within a property for public use, be it within a
government military camp or property that belongs to the Philippines.1avvphi1
Once ownership is established, then the rights of ownership flow freely. Article 428 of the Civil
Code provides that "[t]he owner has the right to enjoy and dispose of a thing, without other
limitations than those established by law." Moreover, the owner "has also a right of action
against the holder and possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the owner of property, even against
those who hold the property. Possession, after all, merely raises a disputable presumption of
ownership, which can be contested through normal judicial processes. 367
In this case, EDCA explicitly provides that ownership of the Agreed Locations remains with the
Philippine govemment.368 What U.S. personnel have a right to, pending mutual agreement, is
access to and use of these locations.369
The right of the owner of the property to allow access and use is consistent with the Civil Code,
since the owner may dispose of the property in whatever way deemed fit, subject to the limits
of the law. So long as the right of ownership itself is not transferred, then whatever rights are
transmitted by agreement does not completely divest the owner of the rights over the property,
but may only limit them in accordance with law.
Hence, even control over the property is something that an owner may transmit freely. This act
does not translate into the full transfer of ownership, but only of certain rights. In Roman
Catholic Apostolic Administrator of Davao, Inc. v. Land Registration Commission, we stated
that the constitutional proscription on property ownership is not violated despite the foreign
national's control over the property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of use and
access. 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
37
and statistics will show that it has been substantially dependent upon a foreign power. In
March 1968, Congressman Barbero, himself a member of the Armed Forces of the Philippines,
revealed top secret documents showing what he described as U.S. dictation over the affairs of
the Armed Forces of the Philippines. He showed that under existing arrangements, the
United States unilaterally determines not only the types and quantity of arms and
equipments that our armed forces would have, but also the time when these items are
to be made available to us. It is clear, as he pointed out, that the composition, capability
and schedule of development of the Armed Forces of the Philippines is under the
effective control of the U.S. government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution that
would assert "independent" and "self-reliant" armed forces. This proposal was rejected by
the committee, however. As Commissioner De Castro asserted, the involvement of the
Philippine military with the U.S. did not, by itself, rob the Philippines of its real
independence. He made reference to the context of the times: that the limited resources of
the Philippines and the current insurgency at that time necessitated a strong military
relationship with the U.S. He said that the U.S. would not in any way control the Philippine
military despite this relationship and the fact that the former would furnish military hardware or
extend military assistance and training to our military. Rather, he claimed that the proposal was
in compliance with the treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military bases on
12 September 1986, I spoke on the selfreliance policy of the armed forces. However, due to
very limited resources, the only thing we could do is manufacture small arms ammunition. We
cannot blame the armed forces. We have to blame the whole Republic of the Philippines for
failure to provide the necessary funds to make the Philippine Armed Forces self-reliant. Indeed
that is a beautiful dream. And I would like it that way. But as of this time, fighting an insurgency
case, a rebellion in our country - insurgency - and with very limited funds and very limited
number of men, it will be quite impossible for the Philippines to appropriate the necessary
funds therefor. However, if we say that the U.S. government is furnishing us the military
hardware, it is not control of our armed forces or of our government. It is in compliance
with the Mutual Defense Treaty. It is under the military assistance program that it becomes
the responsibility of the United States to furnish us the necessary hardware in connection with
the military bases agreement. Please be informed that there are three (3) treaties connected
with the military bases agreement; namely: the RP-US Military Bases Agreement, the Mutual
Defense Treaty and the Military Assistance Program.
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 Tañada v. Angara, in which the Court ruled that independence does
not mean the absence of foreign participation:
Furthermore, the constitutional policy of a "self-reliant and independent national
economy" does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither "economic seclusion" nor "mendicancy in the international
community." As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this
constitutional policy:
Economic self reliance is a primary objective of a developing country that is keenly aware of
overdependence on external assistance for even its most basic needs. It does not mean
autarky or economic seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue foreign control of the
national economy, especially in such strategic industries as in the development of natural
resources and public utilities.378 (Emphases supplied)
The heart of the constitutional restriction on foreign military facilities and bases is therefore the
assertion of independence from the U.S. and other foreign powers, as independence is
exhibited by the degree of foreign control exerted over these areas.1âwphi1 The essence of
that independence is self-governance and self-control.379 Independence itself is "[t]he state or
condition of being free from dependence, subjection, or control. "380
Petitioners assert that EDCA provides the U.S. extensive control and authority over Philippine
facilities and locations, such that the agreement effectively violates Section 25 of the 1987
Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for "operational
control and defense." The term "operational control" has led petitioners to regard U.S. control
over the Agreed Locations as unqualified and, therefore, total. 382 Petitioners contend that the
word "their" refers to the subject "Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and authorities within Agreed
Locations that are necessary for their operational control or defense, including taking
appropriate measure to protect United States forces and United States contractors. The United
States should coordinate such measures with appropriate authorities of the Philippines.
38
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.
For actual operations, EDCA is clear that any activity must be planned and pre-approved by
the MDB-SEB.388 This provision evinces the partnership aspect of EDCA, such that both
stakeholders have a say on how its provisions should be put into effect.
b. Operational control vis-à-vis effective command and control
Petitioners assert that beyond the concept of operational control over personnel, qualifying
access to the Agreed Locations by the Philippine Designated Authority with the phrase
"consistent with operational safety and security requirements in accordance with agreed
procedures developed by the Parties" leads to the conclusion that the U.S. exercises effective
control over the Agreed Locations.389 They claim that if the Philippines exercises possession of
and control over a given area, its representative should not have to be authorized by a special
provision.390
For these reasons, petitioners argue that the "operational control" in EDCA is the "effective
command and control" in the 1947 MBA.391 In their Memorandum, they distinguish effective
command and control from operational control in U.S. parlance.392 Citing the Doctrine for the
Armed Forces of the United States, Joint Publication 1, "command and control (C2)" is defined
as "the exercise of authority and direction by a properly designated commander over assigned
and attached forces in the accomplishment of the mission x x x." 393 Operational control, on the
other hand, refers to "[t]hose functions of command over assigned forces involving the
composition of subordinate forces, the assignment of tasks, the designation of objectives, the
overall control of assigned resources, and the full authoritative direction necessary to
accomplish the mission."394
Two things demonstrate the errors in petitioners' line of argument.
Firstly, the phrase "consistent with operational safety and security requirements in accordance
with agreed procedures developed by the Parties" does not add any qualification beyond that
which is already imposed by existing treaties. To recall, EDCA is based upon prior treaties,
namely the VFA and the MDT.395 Treaties are in themselves contracts from which rights and
obligations may be claimed or waived.396 In this particular case, the Philippines has already
agreed to abide by the security mechanisms that have long been in place between the U.S.
and the Philippines based on the implementation of their treaty relations.397
Secondly, the full document cited by petitioners contradicts the equation of "operational
control" with "effective command and control," since it defines the terms quite differently, viz:398
Command and control encompasses the exercise of authority, responsibility, and direction by a
commander over assigned and attached forces to accomplish the mission. Command at all
levels is the art of motivating and directing people and organizations into action to accomplish
missions. Control is inherent in command. To control is to manage and direct forces and
functions consistent with a commander's command authority. Control of forces and functions
helps commanders and staffs compute requirements, allocate means, and integrate efforts.
Mission command is the preferred method of exercising C2. A complete discussion of tenets,
organization, and processes for effective C2 is provided in Section B, "Command and Control
of Joint Forces," of Chapter V "Joint Command and Control."
39
Operational control is defined thus:399
OPCON is able to be delegated from a lesser authority than COCOM. It is the authority to
perform those functions of command over subordinate forces involving organizing and
employing commands and forces, assigning tasks, designating objectives, and giving
authoritative direction over all aspects of military operations and joint training necessary to
accomplish the mission. It should be delegated to and exercised by the commanders of
subordinate organizations; normally, this authority is exercised through subordinate JFCs,
Service, and/or functional component commanders. OPCON provides authority to organize
and employ commands and forces as the commander considers necessary to accomplish
assigned missions. It does not include authoritative direction for logistics or matters of
administration, discipline, internal organization, or unit training. These elements of COCOM
must be specifically delegated by the CCDR. OPCON does include the authority to delineate
functional responsibilities and operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of combatant command, while command
and control is the overall power and responsibility exercised by the commander with reference
to a mission. Operational control is a narrower power and must be given, while command and
control is plenary and vested in a commander. Operational control does not include the
planning, programming, budgeting, and execution process input; the assignment of
subordinate commanders; the building of relationships with Department of Defense agencies;
or the directive authority for logistics, whereas these factors are included in the concept of
command and control.400
This distinction, found in the same document cited by petitioners, destroys the very foundation
of the arguments they have built: that EDCA is the same as the MBA.
c. Limited operational control over the Agreed Locations only for construction activitites
As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S.
operational control within the Agreed Locations during construction activities. 401 This exercise
of operational control is premised upon the approval by the MDB and the SEB of the
construction activity through consultation and mutual agreement on the requirements and
standards of the construction, alteration, or improvement. 402
Despite this grant of operational control to the U.S., it must be emphasized that the grant is
only for construction activities. The narrow and limited instance wherein the U.S. is given
operational control within an Agreed Location cannot be equated with foreign military control,
which is so abhorred by the Constitution.
The clear import of the provision is that in the absence of construction activities, operational
control over the Agreed Location is vested in the Philippine authorities. This meaning is implicit
in the specific grant of operational control only during construction activities. The principle of
constitutional construction, "expressio unius est exclusio alterius," means the failure to mention
the thing becomes the ground for inferring that it was deliberately excluded. 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 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
40
jurisdiction has been transferred to the U.S. Even the previously discussed necessary
measures for operational control and defense over U.S. forces must be coordinated with
Philippine authorities.411
Jurisprudence bears out the fact that even under the former legal regime of the MBA,
Philippine laws continue to be in force within the bases.412 The difference between then and
now is that EDCA retains the primary jurisdiction of the Philippines over the security of the
Agreed Locations, an important provision that gives it actual control over those locations.
Previously, it was the provost marshal of the U.S. who kept the peace and enforced Philippine
law in the bases. In this instance, Philippine forces act as peace officers, in stark contrast to
the 1947 MBA provisions on jurisdiction.413
iii. Third standard: must respect national security and territorial integrity
The last standard this Court must set is that the EDCA provisions on the Agreed Locations
must not impair or threaten the national security and territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of technology has essentially
rendered the prior notion of permanent military bases obsolete.
Moreover, military bases established within the territory of another state is no longer viable
because of the alternatives offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for
months and years without returning to their home country. These military warships are actually
used as substitutes for a land-home base not only of military aircraft but also of military
personnel and facilities. Besides, vessels are mobile as compared to a land-based military
headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does not allow,
for instance, the re-establishment of the Subic military base or the Clark Air Field as U.S.
military reservations. In this context, therefore, this Court has interpreted the restrictions on
foreign bases, troops, or facilities as three independent restrictions. In accord with this
interpretation, each restriction must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define what a military base
is.415 While the source is not authoritative, petitioners make the point that the Agreed
Locations, by granting access and use to U.S. forces and contractors, are U.S. bases under a
different name.416 More important, they claim that the Agreed Locations invite instances of
attack on the Philippines from enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is not in the realm of law, but of
politics and policy. At the very least, we can say that under international law, EDCA does not
provide a legal basis for a justified attack on the Philippines.
In the first place, international law disallows any attack on the Agreed Locations simply
because of the presence of U.S. personnel. Article 2(4) of the United Nations Charter states
that "All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations." 418 Any unlawful attack on the Philippines
breaches the treaty, and triggers Article 51 of the same charter, which guarantees the inherent
right of individual or collective self-defence.
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 targets 428 and protected
targets.429 In an actual armed conflict between the U.S. and a third state, the Agreed Locations
cannot be considered U.S. territory, since ownership of territory even in times of armed conflict
does not change.430
Hence, any armed attack by forces of a third state against an Agreed Location can only be
legitimate under international humanitarian law if it is against a bona fide U.S. military base,
facility, or installation that directly contributes to the military effort of the U.S. Moreover, the
third state's forces must take all measures to ensure that they have complied with the principle
of distinction (between combatants and non-combatants).
41
There is, then, ample legal protection for the Philippines under international law that would
ensure its territorial integrity and national security in the event an Agreed Location is subjected
to attack. As EDCA stands, it does not create the situation so feared by petitioners - one in
which the Philippines, while not participating in an armed conflict, would be legitimately
targeted by an enemy of the U.S.431
In the second place, this is a policy question about the wisdom of allowing the presence of
U.S. personnel within our territory and is therefore outside the scope of judicial review.
Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or facilities
within the military base of another sovereign state is nothing new on the international plane. In
fact, this arrangement has been used as the framework for several defense cooperation
agreements, such as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
2. 2009 U.S.-Colombia Defense Cooperation Agreement433
3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces access to their military
bases.437 That access is without rental or similar costs to the U.S.438 Further, U.S. forces are
allowed to undertake construction activities in, and make alterations and improvements to, the
agreed locations, facilities, or areas.439 As in EDCA, the host states retain ownership and
jurisdiction over the said bases.440
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 latter’s exclusive use.441
Troop billeting, including construction of temporary structures, is nothing new. In Lim v.
Executive Secretary, the Court already upheld the Terms of Reference of Balikatan 02-
1, which authorized U.S. forces to set up "[t]emporary structures such as those for troop
billeting, classroom instruction and messing x x x during the Exercise." Similar provisions are
also in the Mutual Logistics Support Agreement of 2002 and 2007, which are essentially
executive agreements that implement the VFA, the MDT, and the 1953 Military Assistance
Agreement. These executive agreements similarly tackle the "reciprocal provision of logistic
support, supplies, and services,"442 which include "[b ]illeting, x x x operations support (and
construction and use of temporary structures incident to operations support), training services,
x x x storage services, x x x during an approved activity." 443 These logistic supplies, support,
and services include temporary use of "nonlethal items of military equipment which are not
designated as significant military equipment on the U.S. Munitions List, during an approved
activity."444 The first Mutual Logistics Support Agreement has lapsed, while the second one
has been extended until 2017 without any formal objection before this Court from the Senate
or any of its members.
The provisions in EDCA dealing with Agreed Locations are analogous to those in the
aforementioned executive agreements. Instead of authorizing the building of temporary
structures as previous agreements have done, EDCA authorizes the U.S. to build permanent
structures or alter or improve existing ones for, and to be owned by, the Philippines. 445 EDCA
is clear that the Philippines retains ownership of altered or improved facilities and newly
constructed permanent or non-relocatable structures.446 Under EDCA, U.S. forces will also be
allowed to use facilities and areas for "training; x x x; support and related activities; x x x;
temporary accommodation of personnel; communications" and agreed activities. 447
Concerns on national security problems that arise from foreign military equipment being
present in the Philippines must likewise be contextualized. Most significantly, the VFA already
authorizes the presence of U.S. military equipment in the country. Article VII of the VFA
already authorizes the U.S. to import into or acquire in the Philippines "equipment, materials,
supplies, and other property" that will be used "in connection with activities" contemplated
therein. The same section also recognizes that "[t]itle to such property shall remain" with the
US and that they have the discretion to "remove such property from the Philippines at any
time."
There is nothing novel, either, in the EDCA provision on the prepositioning and storing of
"defense equipment, supplies, and materiel,"448 since these are sanctioned in the VFA. In fact,
the two countries have already entered into various implementing agreements in the past that
are comparable to the present one. The Balikatan 02-1 Terms of Reference mentioned in Lim
v. Executive Secretary specifically recognizes that Philippine and U.S. forces "may share x x x
in the use of their resources, equipment and other assets." Both the 2002 and 2007 Mutual
Logistics Support Agreements speak of the provision of support and services, including the
"construction and use of temporary structures incident to operations support" and "storage
services" during approved activities.449 These logistic supplies, support, and services include
the "temporary use of x x x nonlethal items of military equipment which are not designated as
significant military equipment on the U.S. Munitions List, during an approved activity."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 Locations include
"humanitarian assistance and disaster relief equipment, supplies, and materiel. " 452 Nuclear
weapons are specifically excluded from the materiel that will be prepositioned.
42
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.
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
43
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.
[G.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS
MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN
(United Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD,
KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA,
PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners,
vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS
SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO
MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT
MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE,
SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD,
respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA,
AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A.
GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as Executive
Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and
HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners,
vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR.,
ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS
F. OPLE and RODOLFO G. BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose
Aguila Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity
as President, Republic of the Philippines, and HON. DOMINGO SIAZON, in his
capacity as Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO
SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A.
AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V.
SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE
SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF
NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR
BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS
ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN
RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents.
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
44
century between the Republic of the Philippines and the United States of America -the Visiting
Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military
Bases Agreement which formalized, among others, the use of installations in the Philippine
territory by United States military personnel. To further strengthen their defense and security
relationship, the Philippines and the United States entered into a Mutual Defense Treaty on
August 30, 1951. Under the treaty, the parties agreed to respond to any external armed attack
on their territory, armed forces, public vessels, and aircraft. [1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the
Philippines and the United States negotiated for a possible extension of the military bases
agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines. [2] With the expiration of the RP-US Military
Bases Agreement, the periodic military exercises conducted between the two countries were
held in abeyance. Notwithstanding, the defense and security relationship between the
Philippines and the United States of America continued pursuant to the Mutual Defense
Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant
Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign
Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the complementing
strategic interests of the United States and the Philippines in the Asia-Pacific region. Both
sides discussed, among other things, the possible elements of the Visiting Forces
Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a consolidated
draft text, which in turn resulted to a final series of conferences and negotiations [3] that
culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos
approved the VFA, which was respectively signed by public respondent Secretary Siazon and
Unites States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of
Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary
Ronaldo Zamora, officially transmitted to the Senate of the Philippines, [5] the Instrument of
Ratification, the letter of the President[6] and the VFA, for concurrence pursuant to Section 21,
Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on
Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense
and Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and
recommendation. Thereafter, joint public hearings were held by the two Committees. [7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
443[8] recommending the concurrence of the Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by
a two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then re-numbered as
Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes
between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism
for regulating the circumstances and conditions under which US Armed Forces and defense
personnel may be present in the Philippines, and is quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means United States military and
civilian personnel temporarily in the Philippines in connection with activities approved by
the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor
ordinary residents in the Philippines and who are employed by the United States
armed forces or who are accompanying the United States armed forces, such
as employees of the American Red Cross and the United Services Organization.
Article II
Respect for Law
It is the duty of the United States personnel to respect the laws of the Republic of the
Philippines and to abstain from any activity inconsistent with the spirit of this agreement,
and, in particular, from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of United States
personnel and their departure from the Philippines in connection with activities
covered by this agreement.
45
2. United States military personnel shall be exempt from passport and visa regulations
upon entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall be required
in respect of United States military personnel who enter the Philippines:
(a) personal identity card issued by the appropriate United States authority showing
full name, date of birth, rank or grade and service number (if any), branch of
service and photograph;
(b) individual or collective document issued by the appropriate United States
authority, authorizing the travel or visit and identifying the individual or group
as United States military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a declaration
of health, and when required by the cognizant representative of the
Government of the Philippines, shall conduct a quarantine inspection and will
certify that the aircraft or vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft or United States vessels or
cargoes thereon shall be conducted by the United States commanding officer
in accordance with the international health regulations as promulgated by the
World Health Organization, and mutually agreed procedures.
(1) treason;
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:
(2) sabotage, espionage or violation of any law relating to national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules
shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over
all offenses committed by United States personnel, except in cases provided
for in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of the
United States in relation to.
(1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States personnel;
and
(2) offenses arising out of any act or omission done in performance of official
duty.
46
 (c) The authorities of either government may request the authorities of the other
government to waive their primary right to exercise jurisdiction in a particular
case.
(d) Recognizing the responsibility of the United States military authorities to
maintain good order and discipline among their forces, Philippine authorities
will, upon request by the United States, waive their primary right to exercise
jurisdiction except in cases of particular importance to the Philippines. If the
Government of the Philippines determines that the case is of particular
importance, it shall communicate such determination to the United States
authorities within twenty (20) days after the Philippine authorities receive the
United States request.
(e) When the United States military commander determines that an offense
charged by authorities of the Philippines against United states personnel
arises out of an act or omission done in the performance of official duty, the
commander will issue a certificate setting forth such determination. This
certificate will be transmitted to the appropriate authorities of the Philippines
and will constitute sufficient proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In those cases where the
Government of the Philippines believes the circumstances of the case
require a review of the duty certificate, United States military authorities and
Philippine authorities shall consult immediately. Philippine authorities at the
highest levels may also present any information bearing on its validity.
United States military authorities shall take full account of the Philippine
position. Where appropriate, United States military authorities will take
disciplinary or other action against offenders in official duty cases, and notify
the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it
shall notify the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each
other of the disposition of all cases in which both the authorities of the
Philippines and the United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and
United States shall assist each other in the arrest of United States personnel in
the Philippines and in handling them over to authorities who are to exercise
jurisdiction in accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the
arrest or detention of United States personnel who are subject of Philippine
primary or exclusive jurisdiction. Philippine authorities shall promptly notify
United States military authorities of the arrest or detention of any United States
personnel.
6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military
authorities, if they so request, from the commission of the offense until
completion of all judicial proceedings. United States military authorities shall,
upon formal notification by the Philippine authorities and without delay, make
such personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has been
charged in extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody, which the United
States Government shall take into full account. In the event Philippine judicial
proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one-year period will not
include the time necessary to appeal. Also, the one-year period will not include
any time during which scheduled trial procedures are delayed because United
States authorities, after timely notification by Philippine authorities to arrange for
the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities
shall assist each other in the carrying out of all necessary investigation into
offenses and shall cooperate in providing for the attendance of witnesses and in
the collection and production of evidence, including seizure and, in proper
cases, the delivery of objects connected with an offense.
8. When United States personnel have been tried in accordance with the provisions
of this Article and have been acquitted or have been convicted and are serving,
or have served their sentence, or have had their sentence remitted or
suspended, or have been pardoned, they may not be tried again for the same
offense in the Philippines. Nothing in this paragraph, however, shall prevent
United States military authorities from trying United States personnel for any
violation of rules of discipline arising from the act or omission which constituted
an offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by
Philippine authorities, they shall be accorded all procedural safeguards
established by the law of the Philippines. At the minimum, United States
personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made
against them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such
witnesses;
(d) To present evidence in their defense and to have compulsory process for
obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the
same basis as nationals of the Philippines;
47
 (f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States
authorities, and to have such authorities present at all judicial proceedings.
These proceedings shall be public unless the court, in accordance with
Philippine laws, excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States
personnel shall be carried out in facilities agreed on by appropriate Philippine
and United States authorities. United States Personnel serving sentences in the
Philippines shall have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of
ordinary jurisdiction, and shall not be subject to the jurisdiction of Philippine
military or religious courts.
Article VI
Claims
1. Except for contractual arrangements, including United States foreign military
sales letters of offer and acceptance and leases of military equipment, both
governments waive any and all claims against each other for damage, loss or
destruction to property of each others armed forces or for death or injury to their
military and civilian personnel arising from activities to which this agreement
applies.
2. For claims against the United States, other than contractual claims and those to
which paragraph 1 applies, the United States Government, in accordance with
United States law regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage, loss, personal
injury or death, caused by acts or omissions of United States personnel, or
otherwise incident to the non-combat activities of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and other property
imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall
be free of all Philippine duties, taxes and other similar charges. Title to such
property shall remain with the United States, which may remove such property
from the Philippines at any time, free from export duties, taxes, and other similar
charges. The exemptions provided in this paragraph shall also extend to any
duty, tax, or other similar charges which would otherwise be assessed upon
such property after importation into, or acquisition within, the Philippines. Such
property may be removed from the Philippines, or disposed of therein, provided
that disposition of such property in the Philippines to persons or entities not
entitled to exemption from applicable taxes and duties shall be subject to
payment of such taxes, and duties and prior approval of the Philippine
Government.
2. Reasonable quantities of personal baggage, personal effects, and other property
for the personal use of United States personnel may be imported into and used
in the Philippines free of all duties, taxes and other similar charges during the
period of their temporary stay in the Philippines. Transfers to persons or entities
in the Philippines not entitled to import privileges may only be made upon prior
approval of the appropriate Philippine authorities including payment by the
recipient of applicable duties and taxes imposed in accordance with the laws of
the Philippines. The exportation of such property and of property acquired in the
Philippines by United States personnel shall be free of all Philippine duties,
taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in accordance
with procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The movement
of vessels shall be in accordance with international custom and practice
governing such vessels, and such agreed implementing arrangements as
necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces
shall not be subject to the payment of landing or port fees, navigation or over
flight charges, or tolls or other use charges, including light and harbor dues,
while in the Philippines. Aircraft operated by or for the United States armed
forces shall observe local air traffic control regulations while in the Philippines.
Vessels owned or operated by the United States solely on United States
Government non-commercial service shall not be subject to compulsory pilotage
at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties have notified each
other in writing through the diplomatic channel that they have completed their
constitutional requirements for entry into force. This agreement shall remain in force until
the expiration of 180 days from the date on which either party gives the other party notice
in writing that it desires to terminate the agreement.
48
 Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as
legislators, non-governmental organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute to herein respondents grave abuse of discretion in
ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I suffers thereby in some indefinite way. He must show that he has been, or is about to be,
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
denied some right or privilege to which he is lawfully entitled, or that he is about to be
subjected to some burdens or penalties by reason of the statute complained of. [14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they
have sustained, or are in danger of sustaining any direct injury as a result of the enforcement
of the VFA. As taxpayers, petitioners have not established that the VFA involves the exercise
by Congress of its taxing or spending powers. [15] On this point, it bears stressing that a
taxpayers suit refers to a case where the act complained of directly involves the illegal
disbursement of public funds derived from taxation.[16] Thus, in Bugnay Const. &
Development Corp. vs. Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or
injured by the judgment or entitled to the avails of the suit as a real party in interest. Before he
can invoke the power of judicial review, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by taxation and that he will
sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is
not sufficient that he has merely a general interest common to all members of the public.
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in
the absence of any allegation by petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the present
suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,[18] sustained the legal standing of a member of the Senate and the House of
Representatives to question the validity of a presidential veto or a condition imposed on an
item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners standing
as members of Congress, in the absence of a clear showing of any direct injury to their person
or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of
the power of Congress to grant tax exemptions, are more apparent than real. While it may be
true that petitioners pointed to provisions of the VFA which allegedly impair their legislative
powers, petitioners failed however to sufficiently show that they have in fact suffered direct
injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing
in these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to
49
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.
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.
50
 To our mind, the fact that the President referred the VFA to the Senate under Section 21,
Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII,
the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply
with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits
of military personnel, and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation
and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving
foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent
and in a limited sense, however, the provisions of section 21, Article VII will find applicability
with regard to the issue and for the sole purpose of determining the number of votes required
to obtain the valid concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law
prevails over a general one. Lex specialis derogat generali. Thus, where there is in the same
statute a particular enactment and also a general one which, in its most comprehensive sense,
would include what is embraced in the former, the particular enactment must be operative, and
the general enactment must be taken to affect only such cases within its general language
which are not within the provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general legislation
must give way to a special legislation on the same subject, and generally be so interpreted as
to embrace only cases in which the special provisions are not applicable (Sto. Domingo vs. de
los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De Jesus
vs. People, 120 SCRA 760) and that where two statutes are of equal theoretical application to
a particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. vs.
Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution makes no distinction between
transient and permanent. Certainly, we find nothing in Section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court
should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not
controlling since no foreign military bases, but merely foreign troops and facilities, are involved
in the VFA. Notably, a perusal of said constitutional provision reveals that the proscription
covers foreign military bases, troops, or facilities. Stated differently, this prohibition is not
limited to the entry of troops and facilities without any foreign bases being established. The
clause does not refer to foreign military bases, troops, or facilities collectively but treats them
as separate and independent subjects. The use of comma and the disjunctive word or clearly
signifies disassociation and independence of one thing from the others included in the
enumeration,[28]such that, the provision contemplates three different situations - a military
treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign
facilities - any of the three standing alone places it under the coverage of Section 25, Article
XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first
question is: If the country does enter into such kind of a treaty, must it cover the
three-bases, troops or facilities-or could the treaty entered into cover only one
or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it
covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty
covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty
covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find
some. We just want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer
viable because of the alternatives offered by new means and weapons of warfare such as
nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea
even for months and years without returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of military aircraft but also of military
personnel and facilities. Besides, vessels are mobile as compared to a land-based military
headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of
Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and, when so required by congress,
ratified by a majority of the votes cast by the people in a national referendum; and
(c) recognized as a treaty by the other contracting state.
51
 There is no dispute as to the presence of the first two requisites in the case of the
VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with
the provisions of the Constitution, whether under the general requirement in Section 21, Article
VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least two-
thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply
provides that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of
the Senate is clearly required so that the concurrence contemplated by law may be validly
obtained and deemed present. While it is true that Section 25, Article XVIII requires, among
other things, that the treaty-the VFA, in the instant case-be duly concurred in by the Senate, it
is very true however that said provision must be related and viewed in light of the clear
mandate embodied in Section 21, Article VII, which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the
members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to
section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be construed
in relation to the provisions of Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25, Article XVIII means that at least
two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA in
the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of
twenty-four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or not less
than sixteen (16) members, favorably acting on the proposal is an unquestionable compliance
with the requisite number of votes mentioned in Section 21 of Article VII. The fact that there
were actually twenty-three (23) incumbent Senators at the time the voting was made, [31] will not
alter in any significant way the circumstance that more than two-thirds of the members of the
Senate concurred with the proposed VFA, even if the two-thirds vote requirement is based on
this figure of actual members (23). In this regard, the fundamental law is clear that two-thirds of
the 24 Senators, or at least 16 favorable votes, suffice so as to render compliance with the
strict constitutional mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are
present, we shall now pass upon and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article
XVIII, means that the VFA should have the advice and consent of the United States Senate
pursuant to its own constitutional process, and that it should not be considered merely an
executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard
stating that the VFA is binding on the United States Government is conclusive, on the point
that the VFA is recognized as a treaty by the United States of America. According to
respondents, the VFA, to be binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that the
other contracting party accepts or acknowledges the agreement as a treaty.[32] To require the
other contracting state, the United States of America in this case, to submit the VFA to the
United States Senate for concurrence pursuant to its Constitution, [33] is to accord strict
meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given
their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. Its language should be understood in the sense
they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as binding
as a treaty.[35] To be sure, as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments, and whatever
its particular designation.[36] There are many other terms used for a treaty or international
agreement, some of which are: act, protocol, agreement, compromis d arbitrage, concordat,
convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All
writers, from Hugo Grotius onward, have pointed out that the names or titles of international
agreements included under the general term treaty have little or no legal significance. Certain
terms are useful, but they furnish little more than mere description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the use of those
terms, or to the meanings which may be given to them in the internal law of the State.
Thus, in international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned, as long as the negotiating
functionaries have remained within their powers. [38] International law continues to make no
distinction between treaties and executive agreements: they are equally binding obligations
upon nations.[39]
In our jurisdiction, we have recognized the binding effect of executive agreements even
without the concurrence of the Senate or Congress. In Commissioner of Customs vs.
Eastern Sea Trading,[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the necessity of
subsequent congressional approval has been confirmed by long usage. From the earliest days
of our history we have entered into executive agreements covering such subjects as
52
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.
xxxxxxxxx
Furthermore, the United States Supreme Court has expressly recognized the validity and
constitutionality of executive agreements entered into without Senate approval. (39 Columbia
Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S.
304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S.
203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-
1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [revised
Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d
ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth,
International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is
enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other
state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done
everything to make it a treaty, then as far as we are concerned, we will accept it as a
treaty.[41]
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to the
terms of the VFA.[42] For as long as the united States of America accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is
indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of our
nations consent to be bound by said treaty, with the concomitant duty to uphold the obligations
and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state
or of the government, as the case may be, through which the formal acceptance of the treaty is
proclaimed.[43] A State may provide in its domestic legislation the process of ratification of a
treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a)
the treaty provides for such ratification, (b) it is otherwise established that the negotiating
States agreed that ratification should be required, (c) the representative of the State has
signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject
to ratification appears from the full powers of its representative, or was expressed during the
negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now becomes
obligatory and incumbent on our part, under the principles of international law, to be bound by
the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution,[46]declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international obligation
devolves upon the state and not upon any particular branch, institution, or individual member
of its government, the Philippines is nonetheless responsible for violations committed by any
branch or subdivision of its government or any official thereof. As an integral part of the
community of nations, we are responsible to assure that our government, Constitution and
laws will carry out our international obligation.[47] Hence, we cannot readily plead the
Constitution as a convenient excuse for non-compliance with our obligations, duties and
responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: Every State has the duty to carry out in good
faith its obligations arising from treaties and other sources of international law, and it may not
invoke provisions in its constitution or its laws as an excuse for failure to perform this duty. [48]
Equally important is Article 26 of the convention which provides that Every treaty in force
is binding upon the parties to it and must be performed by them in good faith. This is known as
the principle of pacta sunt servanda which preserves the sanctity of treaties and have been
one of the most fundamental principles of positive international law, supported by the
jurisprudence of international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a
power and performing a task conferred upon him by the Constitution-the power to enter into
and ratify treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in
these consolidated cases impute grave abuse of discretion on the part of the chief Executive
in ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section
21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in
an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so
53
patent and gross as to amount to an evasion of positive duty enjoined or to act at all in boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed
contemplation of law.[50] 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
By constitutional fiat and by the intrinsic nature of his office, the President, as head of for having simply performed a task conferred and sanctioned by no less than the fundamental
State, is the sole organ and authority in the external affairs of the country. In many ways, the law.
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 For the role of the Senate in relation to treaties is essentially legislative in
external affairs of the nation, as Jefferson describes, is executive altogether."[52] 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
As regards the power to enter into treaties or international agreements, the Constitution the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of
vests the same in the President, subject only to the concurrence of at least two-thirds vote of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the
all the members of the Senate. In this light, the negotiation of the VFA and the subsequent principles of separation of powers and of checks and balances alive and vigilantly ensures that
ratification of the agreement are exclusive acts which pertain solely to the President, in the these cherished rudiments remain true to their form in a democratic government such as
lawful exercise of his vast executive and diplomatic powers granted him no less than by the ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress healthy system of checks and balances indispensable toward our nations pursuit of political
itself is powerless to invade it.[53] Consequently, the acts or judgment calls of the President maturity and growth. True enough, rudimentary is the principle that matters pertaining to the
involving the VFA-specifically the acts of ratification and entering into a treaty and those wisdom of a legislative act are beyond the ambit and province of the courts to inquire.
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 In fine, absent any clear showing of grave abuse of discretion on the part of respondents,
this Court, in the absence of clear showing of grave abuse of power or discretion. 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
It is the Courts considered view that the President, in ratifying the VFA and in submitting executive and legislative in character and nature. For the Constitution no less, maps out the
the same to the Senate for concurrence, acted within the confines and limits of the powers distinct boundaries and limits the metes and bounds within which each of the three political
vested in him by the Constitution. It is of no moment that the President, in the exercise of his branches of government may exercise the powers exclusively and essentially conferred to it by
wide latitude of discretion and in the honest belief that the VFA falls within the ambit of Section law.
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 WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby
whimsical abuse of judgment, may be imputed to the President in his act of ratifying the VFA DISMISSED.
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 SO ORDERED.
constitutional task and exercised a prerogative that chiefly pertains to the functions of his
office. Even if he erred in submitting the VFA to the Senate for concurrence under the
provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution,
still, the President may not be faulted or scarred, much less be adjudged guilty of committing
an abuse of discretion in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the
scope of judicial inquiry into areas normally left to the political departments to decide, such as
those relating to national security, it has not altogether done away with political questions such
as those which arise in the field of foreign relations.[54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely (to) check whether or not the governmental
branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or
has a different view. In the absence of a showing (of) grave abuse of discretion amounting to
lack of jurisdiction, there is no occasion for the Court to exercise its corrective powerIt has no
power to look into what it thinks is apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the Senate
alone. Thus, once the Senate[56] performs that power, or exercises its prerogative within the
54
G.R. No. 151445 April 11, 2002

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

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

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

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,

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

DISSENTING OPINION

SEPARATE OPINION

DE LEON, JR., J.:

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

The facts are as follows:

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

Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the paucity of any
formal agreement relative to the treatment of United States personnel visiting the Philippines.
In the meantime, the respective governments of the two countries agreed to hold joint
exercises on a reduced scale. The lack of consensus was eventually cured when the two
nations concluded the Visiting Forces Agreement (V FA) in 1999.
55
The entry of American troops into Philippine soil is proximately rooted in the international anti-
terrorism campaign declared by President George W. Bush in reaction to the tragic events that
occurred on September 11, 2001. On that day, three (3) commercial aircrafts were hijacked,
flown and smashed into the twin towers of the World Trade Center in New York City and the
Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda ("the
Base"), a Muslim extremist organization headed by the infamous Osama bin Laden. Of no
comparable historical parallels, these acts caused billions of dollars worth of destruction of
property and incalculable loss of hundreds of lives.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for
certiorari and prohibition, attacking the constitutionality of the joint exercise. 2 They were joined
subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-Iist
organizations, who filed a petition-in-intervention on February 11, 2002.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS
and PARTIDO, on the other hand, aver that certain members of their organization are
residents of Zamboanga and Sulu, and hence will be directly affected by the operations being
conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus
standi citing the unprecedented importance of the issue involved.
On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise wherein
Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign. Affairs,
presented the Draft Terms of Reference (TOR).3Five days later, he approved the TOR, which
we quote hereunder:
I. POLICY LEVEL
1. The Exercise shall be consistent with the Philippine Constitution and all its activities
shall be in consonance with the laws of the land and the provisions of the RP-US
Visiting Forces Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United Nations
resolutions against global terrorism as understood by the respective parties.
3. No permanent US basing and support facilities shall be established. Temporary
structures such as those for troop billeting, classroom instruction and messing may be
set up for use by RP and US Forces during the Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors
under the authority of the Chief of Staff, AFP. In no instance will US Forces operate
independently during field training exercises (FTX). AFP and US Unit Commanders
will retain command over their respective forces under the overall authority of the
Exercise Co-Directors. RP and US participants shall comply with operational
instructions of the AFP during the FTX.
5. The exercise shall be conducted and completed within a period of not more than
six months, with the projected participation of 660 US personnel and 3,800 RP
Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and
terminate the Exercise and other activities within the six month Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise
relative to Philippine efforts against the ASG, and will be conducted on the Island of
Basilan. Further advising, assisting and training exercises shall be conducted in
Malagutay and the Zamboanga area. Related activities in Cebu will be for support of
the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed
with AFP field, commanders. The US teams shall remain at the Battalion
Headquarters and, when approved, Company Tactical headquarters where they can
observe and assess the performance of the AFP Forces.
8. US exercise participants shall not engage in combat, without prejudice to their right
of self-defense.
9. These terms of Reference are for purposes of this Exercise only and do not create
additional legal obligations between the US Government and the Republic of the
Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting,
advising and training of RP and US Forces with the primary objective of
enhancing the operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local
air traffic regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a country and area briefing at the
start of the Exercise. This briefing shall acquaint US Forces on the culture
and sensitivities of the Filipinos and the provisions of the VF A. The briefing
shall also promote the full cooperation on the part of the RP and US
participants for the successful conduct of the Exercise.
56
 b. RP and US participating forces may share, in accordance with their
respective laws and regulations, in the use of their resources, equipment
and other assets. They will use their respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and
US assets and resources.
d. Legal liaison officers from each respective party shall be appointed by the
Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the
Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp
Aguinaldo, Quezon City.
b. Local media relations will be the concern of the AFP and all public affairs
guidelines shall be jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed jointly
by RP and US Forces in accordance with their respective laws and
regulations, and in consultation with community and local government
officials.
Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and
United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the discussion
between the Vice-President and Assistant Secretary Kelly.4
Petitioners Lim and Ersando present the following arguments:
I
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE
TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSIST ANCE IN
ACCORDANCE WITH THE 'CONSTITUTIONAL PROCESSE-S' OF EACH
COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL
AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT THE ABU
SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE
THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO
WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO
ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO
FIRE BACK "IF FIRED UPON".
Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.
In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter
alia, Lim and Ersando's standing to file suit, the prematurity of the action, as well as the
impropriety of availing of certiorari to ascertain a question of fact. Anent their locus standi, the
Solicitor General argues that first, they may not file suit in their capacities as, taxpayers
inasmuch as it has not been shown that "Balikatan 02-1 " involves the exercise of Congress'
taxing or spending powers. Second, their being lawyers does not invest them with sufficient
personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v.
Zamora.5 Third, Lim and Ersando have failed to demonstrate the requisite showing of direct
personal injury. We agree.
It is also contended that the petitioners are indulging in speculation. The Solicitor General is of
the view that since the Terms of Reference are clear as to the extent and duration of "Balikatan
02-1," the issues raised by petitioners are premature, as they are based only on a fear
of future violation of the Terms of Reference. Even petitioners' resort to a special civil action for
certiorari is assailed on the ground that the writ may only issue on the basis of established
facts.
Apart from these threshold issues, the Solicitor General claims that there is actually no
question of constitutionality involved. The true object of the instant suit, it is said, is to obtain an
interpretation of the V FA. The Solicitor General asks that we accord due deference to the
executive determination that "Balikatan 02-1" is covered by the VFA, considering the
President's monopoly in the field of foreign relations and her role as commander-in-chief of the
Philippine armed forces.
Given the primordial importance of the issue involved, it will suffice to reiterate our view on this
point in a related case:
Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of
its sound discretion, brushes aside the procedural barrier and takes
cognizance of the petitions, as we have done in the early Emergency
Powers Cases, where we had occasion to rule:
'x x x ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino
although they were involving only an indirect and general interest shared in
57
 common with the public. The Court dismissed the objection that they were
not proper parties and ruled that 'transcendental importance to the public
of these cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure.' We have since
then applied the exception in many other cases. [citation omitted]
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,
Daza vs. Singson, and Basco vs. Phil, Amusement and Gaming Corporation,
where we emphatically held:
Considering however the importance to the public of the case at bar, and in
keeping with the Court's duty, under the 1987 Constitution, to determine
whether or not the other branches of the government have kept themselves
within the limits of the Constitution and the laws that they have not abused
the discretion given to them, the Court has brushed aside technicalities of
procedure and has taken cognizance of this petition. xxx'
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that
in cases of transcendental importance, the Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to
the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on
the doctrine of separation of powers, which enjoins upon the department of the
government a becoming respect for each other's act, this Court nevertheless resolves
to take cognizance of the instant petition.6
Hence, we treat with similar dispatch the general objection to the supposed prematurity of the
action. At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of
activity US personnel may undertake and the duration of their stay has been addressed in the
Terms of Reference.
The holding of "Balikatan 02-1" must be studied in the framework of the treaty antecedents to
which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for
brevity). The MDT has been described as the "core" of the defense relationship between the
Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and
technological capabilities of our armed forces through joint training with its American
counterparts; the "Balikatan" is the largest such training exercise directly supporting the MDT's
objectives. It is this treaty to which the V FA adverts and the obligations thereunder which it
seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it
created a vacuum in US-Philippine defense relations, that is, until it was replaced by the
Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of eleven
to three, this Court upheld the validity of the VFA.7 The V FA provides the "regulatory
mechanism" by which "United States military and civilian personnel [may visit] temporarily in
the Philippines in connection with activities approved by the Philippine Government." It
contains provisions relative to entry and departure of American personnel, driving and vehicle
registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and
aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives
continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate
the promotion of optimal cooperation between American and Philippine military forces in the
event of an attack by a common foe.
The first question that should be addressed is whether "Balikatan 02-1" is covered by the
Visiting Forces Agreement. To resolve this, it is necessary to refer to the V FA itself: Not much
help can be had therefrom, unfortunately, since the terminology employed is itself the source
of the problem. The VFA permits United States personnel to engage, on an impermanent
basis, in "activities," the exact meaning of which was left undefined. The expression is
ambiguous, permitting a wide scope of undertakings subject only to the approval of the
Philippine government.8 The sole encumbrance placed on its definition is couched in the
negative, in that United States personnel must "abstain from any activity inconsistent with the
spirit of this agreement, and in particular, from any political activity."9 All other activities, in
other words, are fair game.
We are not left completely unaided, however. The Vienna Convention on the Law of Treaties,
which contains provisos governing interpretations of international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the ordinary meaning
to be given to the tenus of the treaty in their context and in the light of its object and
purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the
parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with
the conclusion of the treaty and accepted by the other parties as an
instrument related to the party .
58
 3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between
the parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31 :
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd unreasonable.
It is clear from the foregoing that the cardinal rule of interpretation must involve an examination
of the text, which is presumed to verbalize the parties' intentions. The Convention likewise
dictates what may be used as aids to deduce the meaning of terms, which it refers to as the
context of the treaty, as well as other elements may be taken into account alongside the
aforesaid context. As explained by a writer on the Convention ,
[t]he Commission's proposals (which were adopted virtually without change by the
conference and are now reflected in Articles 31 and 32 of the Convention) were
clearly based on the view that the text of a treaty must be presumed to be the
authentic expression of the intentions of the parties; the Commission accordingly
came down firmly in favour of the view that 'the starting point of interpretation is the
elucidation of the meaning of the text, not an investigation ab initio into the intentions
of the parties'. This is not to say that the travauxpreparatoires of a treaty , or the
circumstances of its conclusion, are relegated to a subordinate, and wholly
ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on resort
to travaux preparatoires of a treaty was intended by the use of the phrase
'supplementary means of interpretation' in what is now Article 32 of the Vienna
Convention. The distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the
supplementary means do not constitute an alternative, autonomous method of
interpretation divorced from the general rule.10
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of
the word .'activities" arose from accident. In our view, it was deliberately made that way to give
both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance to protect the nation's marine
resources, sea search-and-rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school houses, medical and
humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising, assisting and
training exercise," falls under the umbrella of sanctioned or allowable activities in the context of
the agreement. Both the history and intent of the Mutual Defense Treaty and the V FA support
the conclusion that combat-related activities -as opposed to combat itself -such as the one
subject of the instant petition, are indeed authorized.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted under the
terms of the VFA, what may US forces legitimately do in furtherance of their aim to provide
advice, assistance and training in the global effort against terrorism? Differently phrased, may
American troops actually engage in combat in Philippine territory? The Terms of Reference are
explicit enough. Paragraph 8 of section I stipulates that US exercise participants
may not engage in combat "except in self-defense." We wryly note that this sentiment is
admirable in the abstract but difficult in implementation. The target of "Balikatan 02-1 I" the
Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very
doorstep. They cannot be expected to pick and choose their targets for they will not have the
luxury of doing so. We state this point if only to signify our awareness that the parties straddle
a fine line, observing the honored legal maxim "Nemo potest facere per alium quod non potest
facere per directum."11 The indirect violation is actually petitioners' worry, that in reality,
"Balikatan 02-1 " is actually a war principally conducted by the United States government, and
that the provision on self-defense serves only as camouflage to conceal the true nature of the
exercise. A clear pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the V FA allow foreign troops to engage in an
offensive war on Philippine territory. We bear in mind the salutary proscription stated in the
Charter of the United Nations, to wit:
Article 2
59
 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall
act in accordance with the following Principles.
xxx xxx xxx xxx
4. All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.
xxx xxx xxx xxx
In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in
all other treaties and international agreements to which the Philippines is a party, must be read
in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded
way before the present Charter, though it nevertheless remains in effect as a valid source of
international obligation. The present Constitution contains key provisions useful in determining
the extent to which foreign military troops are allowed in Philippine territory. Thus, in the
Declaration of Principles and State Policies, it is provided that:
xxx xxx xxx xxx
SEC. 2. The Philippines renounces war as an instrument of national policy, adopts
the generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with
all nations.
xxx xxx xxx xxx
SEC. 7. The State shall pursue an independent foreign policy. In its relations with
other states the paramount consideration shall be national sovereignty, territorial
integrity, national interest, and the right to self- determination.
SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a
policy of freedom from nuclear weapons in the country.
xxx xxx xxx xxx
The Constitution also regulates the foreign relations powers of the Chief Executive when it
provides that "[n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate."12 Even more pointedly,
the Transitory Provisions state:
Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign
military bases, troops or facilities shall not be allowed in the Philippines except under
a treaty duly concurred in by the Senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting state.
The aforequoted provisions betray a marked antipathy towards foreign military presence in the
country, or of foreign influence in general. Hence, foreign troops are allowed entry into the
Philippines only by way of direct exception. Conflict arises then between the fundamental law
and our obligations arising from international agreements.
A rather recent formulation of the relation of international law vis-a-vis municipal law was
expressed in Philip Morris, Inc. v. Court of Appeals,13 to wit:
xxx Withal, the fact that international law has been made part of the law of the land
does not by any means imply the primacy of international law over national law in the
municipal sphere. Under the doctrine of incorporation as applied in most countries,
rules of international law are given a standing equal, not superior, to national
legislation.
This is not exactly helpful in solving the problem at hand since in trying to find a middle ground,
it favors neither one law nor the other, which only leaves the hapless seeker with an unsolved
dilemma. Other more traditional approaches may offer valuable insights.
From the perspective of public international law, a treaty is favored over municipal law
pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon
the parties to it and must be performed by them in good faith." 14 Further, a party to a treaty is
not allowed to "invoke the provisions of its internal law as justification for its failure to perform a
treaty."15
Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in section 5
of Article VIII:
The Supreme Court shall have the following powers:
xxx xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and order of lower courts in:
60
 (A) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
xxx xxx xxx xxx
In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to the police power of the
State. In Gonzales v. Hechanova,17
xxx As regards the question whether an international agreement may be invalidated
by our courts, suffice it to say that the Constitution of the Philippines has clearly
settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the
Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse,
modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court
may provide, final judgments and decrees of inferior courts in -( I) All cases in which
the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question." In other words, our Constitution authorizes the nullification
of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs
counter to an act of Congress.
law, or where the power is exercised in an arbitrary and despotic manner by reason of passion
and personal hostility."19
In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts. 20
Under the expanded concept of judicial power under the Constitution, courts are charged with
the duty "to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
government."21 From the facts obtaining, we find that the holding of "Balikatan 02-1" joint
military exercise has not intruded into that penumbra of error that would otherwise call for
correction on our part. In other words, respondents in the case at bar have not committed
grave abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without
prejudice to the filing of a new petition sufficient in form and substance in the proper Regional
Trial Court.
SO ORDERED.

The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an
offensive war on Philippine territory.

Yet a nagging question remains: are American troops actively engaged in combat alongside
Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to
what petitioners would have us do, we cannot take judicial notice of the events transpiring
down south,18 as reported from the saturation coverage of the media. As a rule, we do not
take cognizance of newspaper or electronic reports per se, not because of any issue as to their
truth, accuracy, or impartiality, but for the simple reason that facts must be established in
accordance with the rules of evidence. As a result, we cannot accept, in the absence of
concrete proof, petitioners' allegation that the Arroyo government is engaged in "doublespeak"
in trying to pass off as a mere training exercise an offensive effort by foreign troops on native
soil. The petitions invite us to speculate on what is really happening in Mindanao, to issue I
make factual findings on matters well beyond our immediate perception, and this we are
understandably loath to do.

It is all too apparent that the determination thereof involves basically a question of fact. On this
point, we must concur with the Solicitor General that the present subject matter is not a fit topic
for a special civil action for certiorari. We have held in too many instances that questions of
fact are not entertained in such a remedy. The sole object of the writ is to correct errors of
jurisdiction or grave abuse of discretion: The phrase "grave abuse of discretion" has a precise
meaning in law, denoting abuse of discretion "too patent and gross as to amount to an evasion
of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of

61

SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088
REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT
OF THE INTERNATIONAL Present:
CRIMINAL COURT, TASK FORCE
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J.,
FAMILIES OF VICTIMS OF Puno,
INVOLUNTARY DISAPPEARANCES, Panganiban,
BIANCA HACINTHA R. ROQUE, Quisumbing,
HARRISON JACOB R. ROQUE, Ynares-Santiago,
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,
LEAVIDES G. DOMINGO, EDGARDO *Carpio,
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez,
CELESTE CEMBRANO, LIZA ABIERA, *Corona,
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,
FAGELA, and ROMEL BAGARES, Azcuna,
Petitioners, Tinga,
Chico-Nazario, and
- versus - Garcia, JJ.
OFFICE OF THE EXECUTIVE
SECRETARY, represented by Promulgated:
HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
PUNO J.:
This is a petition for mandamus filed by petitioners to compel the
Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed
copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines
for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution.
The Rome Statute established the International Criminal Court which shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern xxx
and shall be complementary to the national criminal jurisdictions. [1] Its jurisdiction covers the
crime of genocide, crimes against humanity, war crimes and the crime of aggression as
defined in the Statute.[2] The Statute was opened for signature by all states in Rome on July
17, 1998 and had remained open for signature until December 31, 2000 at the United Nations
Headquarters in New York. The Philippines signed the Statute on December 28, 2000
through Charge d Affairs Enrique A. Manalo of the Philippine Mission to the United
Nations.[3] Its provisions, however, require that it be subject to ratification, acceptance or
approval of the signatory states.[4]
Petitioners filed the instant petition to compel the respondents the Office of the Executive
Secretary and the Department of Foreign Affairs to transmit the signed text of the treaty to the
Senate of the Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and
international law, is a function of the Senate. Hence, it is the duty of the executive department
to transmit the signed copy of the Rome Statute to the Senate to allow it to exercise its
discretion with respect to ratification of treaties. Moreover, petitioners submit that the
Philippines has a ministerial duty to ratify the Rome Statute under treaty law and customary
international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining
the states to refrain from acts which would defeat the object and purpose of a treaty when they
have signed the treaty prior to ratification unless they have made their intention clear not to
become parties to the treaty.[5]
The Office of the Solicitor General, commenting for the respondents, questioned the standing
of the petitioners to file the instant suit. It also contended that the petition at bar violates the
rule on hierarchy of courts. On the substantive issue raised by petitioners, respondents argue
that the executive department has no duty to transmit the Rome Statute to the Senate for
concurrence.
62
A petition for mandamus may be filed when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station.[6] We have held that to be given due course, a petition
for mandamus must have been instituted by a party aggrieved by the alleged inaction of any
tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment
of a legal right. The petitioner in every case must therefore be an aggrieved party in the sense
that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be
performed.[7] The Court will exercise its power of judicial review only if the case is brought
before it by a party who has the legal standing to raise the constitutional or legal question.
Legal standing means a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the government act that is being challenged.
The term interest is material interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest.[8]
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to
file the suit as member of the Senate; Congresswoman Loretta Ann Rosales, a member of the
House of Representatives and Chairperson of its Committee on Human Rights; the Philippine
Coalition for the Establishment of the International Criminal Court which is composed of
individuals and corporate entities dedicated to the Philippine ratification of the Rome Statute;
the Task Force Detainees of the Philippines, a juridical entity with the avowed purpose of
promoting the cause of human rights and human rights victims in the country; the Families of
Victims of Involuntary Disappearances, a juridical entity duly organized and existing pursuant
to Philippine Laws with the avowed purpose of promoting the cause of families and victims of
human rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque,
aged two (2) and one (1), respectively, at the time of filing of the instant petition, and suing
under the doctrine of inter-generational rights enunciated in the case of Oposa vs. Factoran,
Jr.;[9] and a group of fifth year working law students from the University of the Philippines
College of Law who are suing as taxpayers.
The question in standing is whether a party has alleged such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional
questions.[10]
We find that among the petitioners, only Senator Pimentel has the legal standing to file the
instant suit. The other petitioners maintain their standing as advocates and defenders of
human rights, and as citizens of the country. They have not shown, however, that they have
sustained or will sustain a direct injury from the non-transmittal of the signed text of the Rome
Statute to the Senate. Their contention that they will be deprived of their remedies for the
protection and enforcement of their rights does not persuade. The Rome Statute is intended to
complement national criminal laws and courts. Sufficient remedies are available under our
national laws to protect our citizens against human rights violations and petitioners can always
seek redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that to the extent the powers of
Congress are impaired, so is the power of each member thereof, since his office confers a
right to participate in the exercise of the powers of that institution. [11] Thus, legislators have the
standing to maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in their office and are allowed to sue to question the validity of any official action
which they claim infringes their prerogatives as legislators. The petition at bar invokes the
power of the Senate to grant or withhold its concurrence to a treaty entered into by the
executive branch, in this case, the Rome Statute. The petition seeks to order the executive
branch to transmit the copy of the treaty to the Senate to allow it to exercise such authority.
Senator Pimentel, as member of the institution, certainly has the legal standing to assert such
authority of the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether the Executive Secretary and the
Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy of the
Rome Statute signed by a member of the Philippine Mission to the United Nations even
without the signature of the President.
We rule in the negative.
In our system of government, the President, being the head of state, is regarded as the sole
organ and authority in external relations and is the countrys sole representative with foreign
nations.[12] As the chief architect of foreign policy, the President acts as the countrys
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations.[13] In the realm of treaty-making, the President has the sole authority to negotiate
with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into
treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3
of all the members of the Senate for the validity of the treaty entered into by him. Section 21,
Article VII of the 1987 Constitution provides that no treaty or international agreement shall be
valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.
The 1935 and the 1973 Constitution also required the concurrence by the legislature to the
treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution
provided:
Sec. 10. (7) The President shall have the power, with the concurrence of
two-thirds of all the Members of the Senate, to make treaties xxx.
Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall
be valid and effective unless concurred in by a majority of all the Members of
the Batasang Pambansa.
The participation of the legislative branch in the treaty-making process was deemed essential
to provide a check on the executive in the field of foreign relations.[14] By requiring the
63
concurrence of the legislature in the treaties entered into by the President, the Constitution
ensures a healthy system of checks and balance necessary in the nations pursuit of political The last step in the treaty-making process is the exchange of the
maturity and growth.[15] instruments of ratification, which usually also signifies the effectivity of the
treaty unless a different date has been agreed upon by the parties. Where
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to ratification is dispensed with and no effectivity clause is embodied in the
mean that the power to ratify treaties belongs to the Senate. treaty, the instrument is deemed effective upon its signature. [16] [emphasis
supplied]
We disagree.
Petitioners arguments equate the signing of the treaty by the Philippine representative
with ratification. It should be underscored that the signing of the treaty and the ratification are
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in
two separate and distinct steps in the treaty-making process. As earlier discussed, the
this wise:
signature is primarily intended as a means of authenticating the instrument and as a symbol of
The usual steps in the treaty-making process are: negotiation,
the good faith of the parties. It is usually performed by the states authorized representative in
signature, ratification, and exchange of the instruments of ratification. The
the diplomatic mission. Ratification, on the other hand, is the formal act by which a state
treaty may then be submitted for registration and publication under the U.N.
confirms and accepts the provisions of a treaty concluded by its representative. It is generally
Charter, although this step is not essential to the validity of the agreement as
held to be an executive act, undertaken by the head of the state or of the government. [17] Thus,
between the parties.
Executive Order No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides
the guidelines in the negotiation of international agreements and its ratification. It mandates
Negotiation may be undertaken directly by the head of state but he now
that after the treaty has been signed by the Philippine representative, the same shall be
usually assigns this task to his authorized representatives. These
transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall then
representatives are provided with credentials known as full powers, which
prepare the ratification papers and forward the signed copy of the treaty to the President for
they exhibit to the other negotiators at the start of the formal discussions. It
ratification. After the President has ratified the treaty, the Department of Foreign Affairs shall
is standard practice for one of the parties to submit a draft of the proposed
submit the same to the Senate for concurrence. Upon receipt of the concurrence of the
treaty which, together with the counter-proposals, becomes the basis of the
Senate, the Department of Foreign Affairs shall comply with the provisions of the treaty to
subsequent negotiations. The negotiations may be brief or protracted,
render it effective. Section 7 of Executive Order No. 459 reads:
depending on the issues involved, and may even collapse in case the parties
Sec. 7. Domestic Requirements for the Entry into Force of a
are unable to come to an agreement on the points under consideration.
Treaty or an Executive Agreement. The domestic requirements for the
entry into force of a treaty or an executive agreement, or any amendment
If and when the negotiators finally decide on the terms of the treaty, the
thereto, shall be as follows:
same is opened for signature. This step is primarily intended as a means of
authenticating the instrument and for the purpose of symbolizing the good
A. Executive Agreements.
faith of the parties; but, significantly, it does not indicate the final consent
of the state in cases where ratification of the treaty is required. The
i. All executive agreements shall be transmitted
document is ordinarily signed in accordance with the alternat, that is, each of
to the Department of Foreign Affairs after their
the several negotiators is allowed to sign first on the copy which he will bring
signing for the preparation of the ratification
home to his own state.
papers. The transmittal shall include the
highlights of the agreements and the benefits
Ratification, which is the next step, is the formal act by which a state
which will accrue to the Philippines arising from
confirms and accepts the provisions of a treaty concluded by its
them.
representatives. The purpose of ratification is to enable the contracting
states to examine the treaty more closely and to give them an
ii. The Department of Foreign Affairs, pursuant to
opportunity to refuse to be bound by it should they find it inimical to
the endorsement by the concerned agency, shall
their interests. It is for this reason that most treaties are made subject
transmit the agreements to the President of the
to the scrutiny and consent of a department of the government other
Philippines for his ratification. The original signed
than that which negotiated them.
instrument of ratification shall then be returned to
the Department of Foreign Affairs for appropriate
xxx
action.
64
 decision is within the competence of the President alone, which cannot be encroached by this
B. Treaties. Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties.[23] The Court, therefore, cannot issue the writ
i. All treaties, regardless of their designation, of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the
shall comply with the requirements provided in executive branch of the government to transmit the signed text of Rome Statute to the Senate.
sub-paragraph[s] 1 and 2, item A (Executive
Agreements) of this Section. In addition, the IN VIEW WHEREOF, the petition is DISMISSED.
Department of Foreign Affairs shall submit the
treaties to the Senate of the Philippines for SO ORDERED.
concurrence in the ratification by the President. A
certified true copy of the treaties, in such
numbers as may be required by the Senate,
together with a certified true copy of the
ratification instrument, shall accompany the
submission of the treaties to the Senate.
SPOUSES RENATO G.R. No. 106064
ii. Upon receipt of the concurrence by the Senate, CONSTANTINO, JR. and
the Department of Foreign Affairs shall comply LOURDES CONSTANTINO Present:
with the provision of the treaties in effecting their and their minor children
entry into force. RENATO REDENTOR, DAVIDE, JR., CJ.,
ANNA MARIKA LISSA, PUNO,
Petitioners submission that the Philippines is bound under treaty law and international law to NINA ELISSA, and PANGANIBAN,
ratify the treaty which it has signed is without basis. The signature does not signify the final ANNA KARMINA, QUISUMBING,
consent of the state to the treaty. It is the ratification that binds the state to the provisions FREEDOM FROM DEBT YNARES-SANTIAGO,
thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the COALITION, and FILOMENO SANDOVAL-GUTIERREZ,
states be subject to ratification, acceptance or approval of the signatory states. Ratification is STA. ANA III, CARPIO,
the act by which the provisions of a treaty are formally confirmed and approved by a State. By Petitioners , AUSTRIA-MARTINEZ,
ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the CORONA,
provisions of such treaty. After the treaty is signed by the states representative, the President, CARPIO-MORALES,
being accountable to the people, is burdened with the responsibility and the duty to carefully CALLEJO, SR.,
study the contents of the treaty and ensure that they are not inimical to the interest of the state - versus - AZCUNA,
and its people. Thus, the President has the discretion even after the signing of the treaty by the TINGA,
Philippine representative whether or not to ratify the same. The Vienna Convention on the Law CHICO-NAZARIO, and
of Treaties does not contemplate to defeat or even restrain this power of the head of states. If GARCIA, JJ.
that were so, the requirement of ratification of treaties would be pointless and futile. It has been HON. JOSE B. CUISIA,
held that a state has no legal or even moral duty to ratify a treaty which has been signed by its in his capacity as Governor
plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but it goes without saying that of the Central Bank,
the refusal must be based on substantial grounds and not on superficial or whimsical reasons. HON. RAMON DEL ROSARIO,
Otherwise, the other state would be justified in taking offense.[19] in his capacity as Secretary
of Finance, HON. EMMANUEL V.
It should be emphasized that under our Constitution, the power to ratify is vested in the PELAEZ, in his capacity as
President, subject to the concurrence of the Senate. The role of the Senate, however, is limited Philippine Debt Negotiating
only to giving or withholding its consent, or concurrence, to the ratification.[20] Hence, it is within Chairman, and the NATIONAL Promulgated:
the authority of the President to refuse to submit a treaty to the Senate or, having secured its TREASURER,
consent for its ratification, refuse to ratify it. [21] Although the refusal of a state to ratify a treaty Respondents. October 13, 2005
which has been signed in its behalf is a serious step that should not be taken lightly, [22] such x-------------------------------------------------------------------x
65
 DECISION
TINGA, J.:
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 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]
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
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
66
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.
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 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 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
67
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 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
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:
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-
68
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 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 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
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
69
 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 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.
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.
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
70
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 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 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 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.
71
 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 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
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.
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
72
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]
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.
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.

Moreover, the policies set by the Constitution as litanized by petitioners are not a panacea that SO ORDERED.
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.

73

G.R. No. 167919 February 14, 2007
PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired) and PMA ’59
FOUNDATION, INC., rep. by its President, COMMODORE CARLOS L. AGUSTIN
(retired), Petitioners,
vs.
HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the
DEPARTMENT OF PUBLIC WORKS and HIGHWAYS, HON. SECRETARY EMILIA T.
BONCODIN, in her capacity as Secretary of the DEPARTMENT OF BUDGET and
MANAGEMENT, HON. SECRETARY CESAR V. PURISIMA, in his capacity as Secretary of
the DEPARTMENT OF FINANCE, HON. TREASURER NORMA L. LASALA, in her capacity
as Treasurer of the Bureau of Treasury, and CHINA ROAD and BRIDGE
CORPORATION, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of Court
seeking to set aside and nullify Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by
the Bids and Awards Committee (BAC) of the Department of Public Works and Highways
(DPWH) and approved by then DPWH Acting Secretary Florante Soriquez. The assailed
resolution recommended the award to private respondent China Road & Bridge Corporation of
the contract for the implementation of civil works for Contract Package No. I (CP I), which
consists of the improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga
road, with the length of 79.818 kilometers, in the island province of Catanduanes.
The CP I project is one of the four packages comprising the project for the
improvement/rehabilitation of the Catanduanes Circumferential Road, covering a total length of
about 204.515 kilometers, which is the main highway in Catanduanes Province. The road
section (Catanduanes Circumferential Road) is part of the Arterial Road Links Development
Project (Phase IV) funded under Loan Agreement No. PH-P204 dated December 28, 1999
between the Japan Bank for International Cooperation (JBIC) and the Government of the
Republic of the Philippines.
Background
Based on the Exchange of Notes dated December 27, 1999,1 the Government of Japan and
the Government of the Philippines, through their respective representatives, namely, Mr.
Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the
Philippines, and then Secretary of Foreign Affairs Domingo L. Siazon, have reached an
understanding concerning Japanese loans to be extended to the Philippines. These loans
were aimed at promoting our country’s economic stabilization and development efforts.
The Exchange of Notes consisted of two documents: (1) a Letter from the Government of
Japan, signed by Ambassador Ara, addressed to then Secretary of Foreign Affairs Siazon,
confirming the understanding reached between the two governments concerning the loans to
be extended by the Government of Japan to the Philippines; and (2) a document denominated
as Records of Discussion where the salient terms of the loans as set forth by the Government
of Japan, through the Japanese delegation, were reiterated and the said terms were accepted
by the Philippine delegation. Both Ambassador Ara and then Secretary Siazon signed the
Records of Discussion as representatives of the Government of Japan and Philippine
Government, respectively.
The Exchange of Notes provided that the loans to be extended by the Government of Japan to
the Philippines consisted of two loans: Loan I and Loan II. The Exchange of Notes stated in
part:
I
1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and
sixty-one million yen (Y79,861,000,000) (hereinafter referred to as "the Loan I") will
74
 be extended, in accordance with the relevant laws and regulations of Japan, to the LIST A
Government of the Republic of the Philippines (hereinafter referred to as "the
Borrower I") by the Japan Bank for International Cooperation (hereinafter referred to Maximum amount in million yen)
as "the Bank") to implement the projects enumerated in the List A attached hereto
(hereinafter referred to as "the List A") according to the allocation for each project as
specified in the List A. 1. Secondary Education Development and Improvement Project 7,210

2. (1) The Loan I will be made available by loan agreements to be concluded between 2. Rural Water Supply Project (Phase V) 951
the Borrower I and the Bank. The terms and conditions of the Loan I as well as the
procedure for its utilization will be governed by said loan agreements which will 3. Bohol Irrigation Project (Phase II) 6,078
contain, inter alia, the following principles:
4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990
...
5. Arterial Road Links Development Project (Phase IV) 15,384
(2) Each of the loan agreements mentioned in sub-paragraph (1) above will
be concluded after the Bank is satisfied of the feasibility, including 6. Cordillera Road Improvement Project 5,852
environmental consideration, of the project to which such loan agreement
relates.
7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation Project
(Phase II) 7,434
3. (1) The Loan I will be made available to cover payments to be made by the
Philippine executing agencies to suppliers, contractors and/or consultants of eligible
source countries under such contracts as may be entered into between them for 8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project (Phase IV)
purchases of products and/or services required for the implementation of the projects 5,068
enumerated in the List A, provided that such purchases are made in such eligible
source countries for products produced in and/or services supplied from those 9. Maritime Safety Improvement Project (Phase C) 4,714
countries.
10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013
(2) The scope of eligible source countries mentioned in sub-paragraph (1)
above will be agreed upon between the authorities concerned of the two
11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167
Governments.

Total 79,8613
(3) A part of the Loan I may be used to cover eligible local currency
requirements for the implementation of the projects enumerated in the List A.
The Exchange of Notes further provided that:
4. With regard to the shipping and marine insurance of the products purchased under
the Loan I, the Government of the Republic of the Philippines will refrain from III
imposing any restrictions that may hinder fair and free competition among the
shipping and marine insurance companies. xxxx

x x x x2 1awphi1.net
Pertinently, List A, which specified the projects to be financed under the Loan I, includes the
Arterial Road Links Development Project (Phase IV), to wit:
3. The Government of the Republic of the Philippines will ensure that the products and/or
services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
Bank, which set forth, inter alia, the procedures of international tendering to be followed except
where such procedures are inapplicable or inappropriate.
75
x x x x4
The Records of Discussion, which formed part of the Exchange of Notes, also stated in part,
thus:
xxxx
1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes
concerning the financing of eligible local currency requirements for the implementation of the
projects mentioned in the said sub-paragraph, the representative of the Japanese delegation
stated that:
(1) such requirement of local currency as general administrative expenses, interest
during construction, taxes and duties, expenses concerning office, remuneration to
employees of the executing agencies and housing, not directly related to the
implementation of the said projects, as well as purchase of land properties,
compensation and the like, however, will not be considered as eligible for financing
under the Loan I; and
(2) the procurement of products and/or services will be made in accordance with the
procedures of international competitive tendering except where such procedures are
inapplicable and inappropriate.
x x x x5
Thus, in accordance with the agreement reached by the Government of Japan and the
Philippine Government, as expressed in the Exchange of Notes between the representatives
of the two governments, the Philippines obtained from and was granted a loan by the JBIC.
Loan Agreement No. PH-P204 dated December 28, 1999, in particular, stated as follows:
Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR
INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES.
In the light of the contents of the Exchange of Notes between the Government of Japan and
the Government of the Republic of the Philippines dated December 27, 1999, concerning
Japanese loans to be extended with a view to promoting the economic stabilization and
development efforts of the Republic of the Philippines.
JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK")
and THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (hereinafter referred to
as "the Borrower") herewith conclude the following Loan Agreement (hereinafter referred to as
"the Loan Agreement", which includes all agreements supplemental hereto).
x x x x6
Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to lend the
Philippine Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED
EIGHTY-FOUR MILLION Japanese Yen (Y15,384,000,000) as principal for the implementation
of the Arterial Road Links Development Project (Phase IV) on the terms and conditions set
forth in the Loan Agreement and in accordance with the relevant laws and regulations of
Japan.7 The said amount shall be used for the purchase of eligible goods and services
necessary for the implementation of the above-mentioned project from suppliers, contractors
or consultants.8
Further, it was provided under the said loan agreement that other terms and conditions
generally applicable thereto shall be set forth in the General Terms and Conditions, dated
November 1987, issued by the Overseas Economic Cooperation Fund (OECF) and for the
purpose, reference to "the OECF" and "Fund" therein (General Terms and Conditions) shall be
substituted by "the JBIC" and "Bank," respectively.9 Specifically, the guidelines for
procurement of all goods and services to be financed out of the proceeds of the said loan shall
be as stipulated in the Guidelines for Procurement under OECF Loans dated December 1997
(herein referred to as JBIC Procurement Guidelines).10
As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to
finance the Arterial Road Links Development Project (Phase IV), of which the Catanduanes
Circumferential Road was a part. This road section, in turn, was divided into four contract
packages (CP):
CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms
CP II: Viga-Bagamanoc Road - 10.40 kms.
CP III: Bagamanoc-Pandan Road - 47.50 kms.
CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11
Subsequently, the DPWH, as the government agency tasked to implement the project, caused
the publication of the "Invitation to Prequalify and to Bid" for the implementation of the CP I
project in two leading national newspapers, namely, the Manila Times and Manila Standard on
November 22 and 29, and December 5, 2002.
A total of twenty-three (23) foreign and local contractors responded to the invitation by
submitting their accomplished prequalification documents on January 23, 2003. In accordance
with the established prequalification criteria, eight contractors were evaluated or considered
eligible to bid as concurred by the JBIC. One of them, however, withdrew; thus, only seven
contractors submitted their bid proposals.
76
The bid documents submitted by the prequalified contractors/bidders were examined to
determine their compliance with the requirements as
stipulated in Article 6 of the Instruction to Bidders.12 After the lapse of the deadline for the
submission of bid proposals, the opening of the bids commenced immediately. Prior to the
opening of the respective bid proposals, it was announced that the Approved Budget for the
Contract (ABC) was in the amount of ₱738,710,563.67.
Phase IV, located in Catanduanes Province, under JBIC Loan Agreement No. PH-P204.16 On
September 29, 2004, a Contract of Agreement was entered into by and between the DPWH
and private respondent China Road & Bridge Corporation for the implementation of the CP I
project.
The Parties

The result of the bidding revealed the following three lowest bidders and their respective bids
vis-à-vis the ABC:13
Original Bid As Read As-Corrected Bid Amount
Name of Bidder
(Pesos)
1) China Road And Bridge
₱ 993,183,904.98
Corporation
2) Cavite Ideal Int’l Const. Devt.
₱1,099,926,598.11
Corp.
3) Italian Thai Dev’t. Public
₱1,125,022,075.34
Company, Ltd.
The bid of private respondent China Road & Bridge Corporation was corrected from the
original ₱993,183,904.98 (with variance of 34.45% from the ABC) to ₱952,564,821.71 (with
variance of 28.95% from the ABC) based on their letter clarification dated April 21, 2004.
After further evaluation of the bids, particularly those of the lowest three bidders, Mr. Hedifume
Ezawa, Project Manager of the Catanduanes Circumferential Road Improvement Project
(CCRIP), in his Contractor’s Bid Evaluation Report dated April 2004, recommended the award
of the contract to private respondent China Road & Bridge Corporation:
In accordance with the Guidelines for the Procurements under ODA [Official Development
Assistance] Loans, the Consultant hereby recommends the award of the contract for the
construction of CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Section under the Arterial
Road Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest
Complying Bidder, China Road and Bridge Corporation, at its total corrected bid amount of
Nine Hundred Fifty-Two Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One
& 71/100 Pesos.15
The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the
assailed Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the award in favor
of private respondent China Road & Bridge Corporation of the contract for the implementation
of civil works for CP I, San Andres (Codon) – Virac – Jct. Bato – Viga Road (Catanduanes
Circumferential Road Improvement Project) of the Arterial Roads Links Development Project,
Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former
lawmaker, and a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the
suit as a taxpayer, former military officer, and a Filipino citizen. Petitioner PMA ’59 Foundation,
Inc., on the other hand, is a non-stock, non-profit corporation organized under the existing
Philippine
Variance
laws. It claims that its members are all taxpayers and alumni of the Philippine
(Pesos)
Military Academy. It is represented by its President, Carlos L. Agustin.
₱952,564,821.71 28.95%
Named as public respondents are the DPWH, as the government agency tasked with the
implementation of government infrastructure projects; the Department of Budget and
Management
₱1,099,926,598.11 48.90%(DBM) as the government agency that authorizes the release and disbursement
of public funds for the implementation of government infrastructure projects; and the
Department of Finance (DOF) as the government agency that acts as the custodian and
manager of all financial resources of the government. Also named as individual public
₱1,125,392,475.36 52.35%
respondents are Hermogenes E. Ebdane, Jr., Emilia T. Boncodin and Cesar V. Purisima in
their capacities as former Secretaries of the DPWH, DBM and DOF, respectively. On the other
hand, public respondent Norma L. Lasala was impleaded in her capacity as Treasurer of the
Bureau of Treasury.
14
Private respondent China Road & Bridge Corporation is a duly organized corporation engaged
in the business of construction.
The Petitioners’ Case
The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7,
2004, which recommended the award to private respondent China Road & Bridge Corporation
of the contract for the implementation of the civil works of CP I. They also seek to annul the
contract of agreement subsequently entered into by and between the DPWH and private
respondent China Road & Bridge Corporation pursuant to the said resolution.
They pose the following issues for the Court’s resolution:
I. Whether or not Petitioners have standing to file the instant Petition.
II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari
reversing and setting aside DPWH Resolution No. PJHL-A-04-012, recommending
the award of the Contract Agreement for the implementation of civil works for CPI,
77
 San Andres (CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES
CIRCUMFERENTIAL ROAD IMPROVEMENT PROJECT) of the Arterial Road Links
Development Project, Phase IV, located in Catanduanes Province, under JBIC L/A
No. PH-P204, to China Road & Bridge Corporation.
III. Whether or not the Contract Agreement executed by and between the Republic of
the Philippines, through the Department of Public Works and Highways, and the
China Road & Bridge Corporation, for the implementation of civil works for CPI, San
Andres (CODON)-VIRAC-JCT BATO-VIGA ROAD (CATANDUANES
CIRCUMFERENTIAL ROAD IMPROVEMENT PROJECT) of the Arterial Road Links
Development Project, Phase IV, located in Catanduanes Province, under JBIC L/A
No. PH-P204, is void ab initio.
IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition
permanently prohibiting the implementation of DPWH Resolution No. PJHL-A-04-012
and the Contract Agreement executed by and between the Republic of the Philippines
(through the Department of Public Works and Highways) and the China Road &
Bridge Corporation, and the disbursement of public funds by the [D]epartment of
[B]udget and [M]anagement for such purpose.
V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a
Temporary Restraining Order immediately enjoining the implementation of DPWH
Resolution No. PJHL-A-04-012 and the Contract Agreement executed by and
between the Republic of the Philippines (through the Department of Public Works and
Highways) and the China Road & Bridge Corporation, and the disbursement of public
funds by the Department of Budget and Management for such purpose, during the
pendency of this case.17
Preliminarily, the petitioners assert that they have standing or locus standi to file the instant
petition. They claim that as taxpayers and concerned citizens, they have the right and duty to
question the expenditure of public funds on illegal acts. They point out that the Philippine
Government allocates a peso-counterpart for CP I, which amount is appropriated by Congress
in the General Appropriations Act; hence, funds that are being utilized in the implementation of
the questioned project also partake of taxpayers’ money. The present action, as a taxpayers’
suit, is thus allegedly proper.
They likewise characterize the instant petition as one of transcendental importance that
warrants the Court’s adoption of a liberal stance on the issue of standing. It cited several cases
where the Court brushed aside procedural technicalities in order to resolve issues involving
paramount public interest and transcendental importance. 18 Further, petitioner Abaya asserts
that he possesses the requisite standing as a former member of the House of Representatives
and one of the principal authors of Republic Act No. 9184 (RA 9184) 19 known as the
Government Procurement Reform Act, the law allegedly violated by the public respondents.
On the substantive issues, the petitioners anchor the instant petition on the contention that the
award of the contract to private respondent China Road & Bridge Corporation violates RA
9184, particularly Section 31 thereof which reads:
SEC. 31. Ceiling for Bid Prices. – The ABC shall be the upper limit or ceiling for the Bid prices.
Bid prices that exceed this ceiling shall be disqualified outright from further participating in the
bidding. There shall be no lower limit to the amount of the award.
In relation thereto, the petitioners cite the definition of the ABC, thus:
SEC. 5. Definition of Terms. –
xxx
(a) Approved Budget for the Contract (ABC). – refers to the budget for the contract duly
approved by the Head of the Procuring Entity, as provided for in the General Appropriations
Act and/or continuing appropriations, in the case of National Government Agencies; the
Corporate Budget for the contract approved by the governing Boards, pursuant to E.O. No.
518, series of 1979, in the case of Government-Owned and/or Controlled Corporations,
Government Financial Institutions and State Universities and Colleges; and the Budget for the
contract approved by the respective Sanggunian, in the case of Local Government Units.
xxx
The petitioners theorize that the foregoing provisions show the mandatory character of ceilings
or upper limits of every bid. Under the above-quoted provisions of RA 9184, all bids or awards
should not exceed the ceilings or upper limits; otherwise, the contract is deemed void and
inexistent.
Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it
recommended the award of the contract to private respondent China Road & Bridge
Corporation whose bid was more than ₱200 million overpriced based on the ABC. As such, the
award is allegedly illegal and unconscionable.
In this connection, the petitioners opine that the contract subsequently entered into by and
between the DPWH and private respondent China Road & Bridge Corporation is void ab initio
for being prohibited by RA 9184. They stress that Section 31 thereof expressly provides that
"bid prices that exceed this ceiling shall be disqualified outright from participating in the
bidding." The upper limit or ceiling is called the ABC and since the bid of private respondent
China Road & Bridge Corporation exceeded the ABC for the CP I project, it should have been
allegedly disqualified from the bidding process and should not, by law, have been awarded the
said contract. They invoke Article 1409 of the Civil Code:
78
ART. 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs,
public order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time of the transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the principal object of the
contract cannot be ascertained;
(7) Those expressly prohibited or declared void by law.
For violating the above provision, the contract between the DPWH and private respondent
China Road & Bridge Corporation is allegedly inexistent and void ab initio and can produce no
effects whatsoever.
It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-
funded procurement contracts. They cite the following excerpt of the deliberations of the
Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. 2248 and
House Bill No. 4809:20
REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go back to
Section 4, Mr. Chairman?
THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition – definition of
terms.
REP. ABAYA. Sa House bill, it is sa scope and application.
THE CHAIRMAN (SEN. ANGARA). Okay.
REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of goods,
supplies and materials, infrastructure projects and consulting services regardless of funding
source whether local or foreign by the government."
THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it. 21
xxx xxx xxx
THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic ‘yan eh.
Now, just for the record Del, can you repeat again the justification for including foreign funded
contracts within the scope para malinaw because the World Bank daw might raise some
objection to it.
REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these are
the big projects. To give an example, if you allow bids above government estimate, let’s say
take the case of 500 million project, included in that 500 million is the 20 percent profit. If you
allow them to bid above government estimate, they will add another say 28 percent of (sic) 30
percent, 30 percent of 500 million is another 150 million. Ito, this is a rich source of graft
money, aregluhan na lang, 150 million, five contractors will gather, "O eto 20 million, 20 million,
20 million." So, it is rigged. ‘Yun ang practice na nangyayari. If we eliminate that, if we have a
ceiling then, it will not be very tempting kasi walang extra money na pwedeng ibigay sa ibang
contractor. So this promote (sic) collusion among bidders, of course, with the cooperation of
irresponsible officials of some agencies. So we should have a ceiling to include foreign funded
projects.22
The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine
Government is neither a treaty, an international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered a treaty, an international or an
executive agreement, the parties must be two sovereigns or States whereas in the case of
Loan Agreement No. PH-P204, the parties are the Philippine Government and the JBIC, a
banking agency of Japan, which has a separate juridical personality from the Japanese
Government.
They further insist on the applicability of RA 9184 contending that while it took effect on
January 26, 200323 and Loan Agreement No. PH-P204 was executed prior thereto or on
December 28, 1999, the actual procurement or award of the contract to private respondent
China Road & Bridge Corporation was done after the effectivity of RA 9184. The said law is
allegedly specific as to its application, which is on the actual procurement of infrastructure and
other projects only, and not on the loan agreements attached to such projects. Thus, the
petition only prays for the annulment of Resolution No. PJHL-A-04-012 as well as the contract
between the DPWH and private respondent China Road & Bridge Corporation. The petitioners
clarify that they do not pray for the annulment of Loan Agreement No. PH-P204. Since the
subject procurement and award of the contract were done after the effectivity of RA 9184,
necessarily, the procurement rules established by that law allegedly apply, and not Presidential
Decree No. 1594 (PD 1594)24 and Executive Order No. 40 (EO 40), series of 2001, 25 as
contended by the respondents. The latter laws, including their implementing rules, have
allegedly been repealed by RA 9184. Even RA 4860, as amended, known as the Foreign
Borrowings Act, the petitioners posit, may have also been repealed or modified by RA 9184
insofar as its provisions are inconsistent with the latter.
79
The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA 9184,
Otherwise Known as the Government Procurement Reform Act, Part A" (IRR-A) cited by the
respondents is not applicable as these rules only govern domestically-funded procurement
contracts. They aver that the implementing rules to govern foreign-funded procurement, as in
the present case, have yet to be drafted and in fact, there are concurrent resolutions drafted by
both houses of Congress for the Reconvening of the Joint Congressional Oversight Committee
for the formulation of the IRR for foreign-funded procurements under RA 9184.
The petitioners maintain that disbursement of public funds to implement a patently void and
illegal contract is itself illegal and must be enjoined. They bring to the Court’s attention the fact
that the works on the CP I project have already commenced as early as October 2004. They
thus urge the Court to issue a writ of certiorari to set aside Resolution No. PJHL-A-04-012 as
well as to declare null and void the contract entered into between the DPWH and private
respondent China Road & Bridge Corporation. They also pray for the issuance of a temporary
restraining order and, eventually, a writ of prohibition to permanently enjoin the DPWH from
implementing Resolution No. PJHL-A-04-012 and its contract with private respondent China
Road & Bridge Corporation as well as the DBM from disbursing funds for the said purpose.
The Respondents’ Counter-Arguments
The public respondents, namely the DPWH, DBM and DOF, and their respective named
officials, through the Office of the Solicitor General, urge the Court to dismiss the petition on
grounds that the petitioners have no locus standi and, in any case, Resolution No. PJHL-A-04-
012 and the contract between the DPWH and private respondent China Road & Bridge
Corporation are valid.
According to the public respondents, a taxpayer’s locus standi was recognized in the following
cases: (a) where a tax measure is assailed as unconstitutional; 26 (b) where there is a question
of validity of election laws;27 (c) where legislators questioned the validity of any official action
upon the claim that it infringes on their prerogatives as legislators; 28 (d) where there is a claim
of illegal disbursement or wastage of public funds through the enforcement of an invalid or
unconstitutional law;29 (e) where it involves the right of members of the Senate or House of
Representatives to question the validity of a presidential veto or condition imposed on an item
in an appropriation bill;30 or (f) where it involves an invalid law, which when enforced will put
the petitioner in imminent danger of sustaining some direct injury as a result thereof, or that he
has been or is about to be denied some right or privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or penalties by reason of the statute complained
of.31 None of the above considerations allegedly obtains in the present case.
It is also the view of the public respondents that the fact that petitioner Abaya was a former
lawmaker would not suffice to confer locus standi on himself. Members of Congress may
properly challenge the validity of an official act of any department of the government only upon
showing that the assailed official act affects or impairs their rights and prerogatives as
legislators.
The public respondents further assail the standing of the petitioners to file the instant suit
claiming that they failed to allege any specific injury suffered nor an interest that is direct and
personal to them. If at all, the interest or injuries claimed by the petitioners are allegedly merely
of a general interest common to all members of the public. Their interest is allegedly too
vague, highly speculative and uncertain to satisfy the requirements of locus standi.
The public respondents find it noteworthy that the petitioners do not raise issues of
constitutionality but only of contract law, which the petitioners not being privies to the
agreement cannot raise. This is following the principle that a stranger to a contract cannot sue
either or both the contracting parties to annul and set aside the same except when he is
prejudiced on his rights and can show detriment which would positively result to him from the
implementation of the contract in which he has no intervention. There being no particularized
interest or elemental substantial injury necessary to confer locus standi, the public respondents
implore the Court to dismiss the petition.
On the merits, the public respondents maintain that the imposition of ceilings or upper limits on
bid prices in RA 9184 does not apply because the CP I project and the entire Catanduanes
Circumferential Road Improvement Project, financed by Loan Agreement No. PH-P204
executed between the Philippine Government and the JBIC, is governed by the latter’s
Procurement Guidelines which precludes the imposition of ceilings on bid prices. Section 5.06
of the JBIC Procurement Guidelines reads:
Section 5.06. Evaluation and Comparison of Bids.
xxx
(e) Any procedure under which bids above or below a predetermined bid value assessment
are automatically disqualified is not permitted.
It was explained that other foreign banks such as the Asian Development Bank (ADB) and the
World Bank (WB) similarly prohibit the bracketing or imposition of a ceiling on bid prices.
The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the
assailed Resolution No. PJHL-A-04-012 and the subsequent contract between the DPWH and
private respondent China Road & Bridge Corporation materialized. They likewise aver that
Loan Agreement No. PH-P204 is governed by RA 4860, as amended, or the Foreign
Borrowings Act. Section 4 thereof states:
SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of
the Philippines may, when necessary, agree to waive or modify, the application of any law
granting preferences or imposing restrictions on international competitive bidding, including
among others [Act No. 4239, Commonwealth Act No. 138], the provisions of [CA 541], insofar
as such provisions do not pertain to constructions primarily for national defense or security
purposes, [RA 5183]; Provided, however, That as far as practicable, utilization of the services
80
of qualified domestic firms in the prosecution of projects financed under this Act shall be
encouraged: Provided, further, That in case where international competitive bidding shall be
conducted preference of at least fifteen per centum shall be granted in favor of articles,
materials or supplies of the growth, production or manufacture of the Philippines: Provided,
finally, That the method and procedure in comparison of bids shall be the subject of agreement
between the Philippine Government and the lending institution.
DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that
an agreement for the exclusion of foreign assisted projects from the coverage of local bidding
regulations does not contravene existing legislations because the statutory basis for foreign
loan agreements is RA 4860, as amended, and under Section 4 thereof, the President is
empowered to waive the application of any law imposing restrictions on the procurement of
goods and services pursuant to such loans.
Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as
amended, and PD 1594, relative to the award of foreign-assisted projects, are also invoked by
the public respondents, to wit:
Memorandum Circular No. 104:
In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
as the "Foreign Borrowings Act"
xxx
It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the
application for the pertinent provisions of the Implementing Rules and Regulations (IRR) of
Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the comparison of
bids, which matter may be the subject of agreement between the infrastructure agency
concerned and the lending institution. It should be made clear however that public bidding is
still required and can only be waived pursuant to existing laws.
Memorandum Circular No. 108:
In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
as the "Foreign Borrowings Act", it is hereby clarified that, for projects supported in whole or in
part by foreign assistance awarded through international or local competitive bidding, the
government agency concerned may award the contract to the lowest evaluated bidder at his
bid price consistent with the provisions of the applicable loan/grant agreement.
Specifically, when the loan/grant agreement so stipulates, the government agency concerned
may award the contract to the lowest bidder even if his/its bid exceeds the approved agency
estimate.
It is understood that the concerned government agency shall, as far as practicable, adhere
closely to the implementing rules and regulations of Presidential Decree No. 1594 during
loan/grant negotiation and the implementation of the projects.32
The public respondents characterize foreign loan agreements, including Loan Agreement No.
PH-P204, as executive agreements and, as such, should be observed pursuant to the
fundamental principle in international law of pacta sunt servanda. 33 They cite Section 20 of
Article VII of the Constitution as giving the President the authority to contract foreign loans:
SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of
the Philippines with the prior concurrence of the Monetary Board, and subject to such
limitations as may be provided by law. The Monetary Board shall, within thirty days from the
end of every quarter of the calendar year, submit to the Congress a complete report of its
decisions on applications for loans to be contracted or guaranteed by the Government or
Government-owned and Controlled Corporations which would have the effect of increasing the
foreign debt, and containing other matters as may be provided by law.
The Constitution, the public respondents emphasize, recognizes the enforceability of executive
agreements in the same way that it recognizes generally accepted principles of international
law as forming part of the law of the land.34 This recognition allegedly buttresses the binding
effect of executive agreements to which the Philippine Government is a signatory. It is pointed
out by the public respondents that executive agreements are essentially contracts governing
the rights and obligations of the parties. A contract, being the law between the parties, must be
faithfully adhered to by them. Guided by the fundamental rule of pacta sunt servanda, the
Philippine Government bound itself to perform in good faith its duties and obligations under
Loan Agreement No. PH-P204.
The public respondents further argue against the applicability of RA 9184 stating that it was
signed into law on January 10, 2003.35 On the other hand, Loan Agreement No. PH-P204 was
executed on December 28, 1999, where the laws then in force on government procurements
were PD 1594 and EO 40. The latter law (EO 40), in particular, excluded from its application
"any existing and future government commitments with respect to the bidding and award of
contracts financed partly or wholly with funds from international financing institutions as well as
from bilateral and other similar foreign sources."
The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the "Invitation to
Prequalify and to Bid" for the implementation of the CP I project was published in two leading
national newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and
December 5, 2002, or before the signing into law of RA 9184 on January 10, 2003. In this
connection, the public respondents point to Section 77 of IRR-A, which reads:
SEC. 77. Transitory Clause. –
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In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and
its IRR, or other applicable laws as the case may be, shall govern.
In cases where the advertisements or invitations for bids were issued after the effectivity of the
Act but before the effectivity of this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in EO 40 and its IRR, or other
applicable laws, as the case may be.
Section 4 of RA 9184 is also invoked by the public respondents as it provides:
SEC. 4. Scope and Applications. – This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or
foreign, by all branches and instrumentalities of government, its departments, offices and
agencies, including government-owned and/or –controlled corporations and local government
units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or
executive agreement affecting the subject matter of this Act to which the Philippine
government is a signatory shall be observed.
It is also the position of the public respondents that even granting arguendo that Loan
Agreement No. PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable under
the non-impairment clause36 of the Constitution. The said loan agreement expressly provided
that the procurement of goods and services for the project financed by the same shall be
governed by the Guidelines for Procurement under OECF Loans dated December 1997.
Further, Section 5.06 of the JBIC Procurement Guidelines categorically provides that "[a]ny
procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted."
The public respondents explain that since the contract is the law between the parties and Loan
Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall govern the parties’
relationship and further dictates that there be no ceiling price for the bidding, it naturally follows
that any subsequent law passed contrary to the letters of the said contract would have no
effect with respect to the parties’ rights and obligations arising therefrom.
To insist on the application of RA 9184 on the bidding for the CP I project would,
notwithstanding the terms and conditions of Loan Agreement No. PH-P204, allegedly violate
the constitutional provision on non-impairment of obligations and contracts, and destroy vested
rights duly acquired under the said loan agreement.
Lastly, the public respondents deny that there was illegal disbursement of public funds by the
DBM. They asseverate that all the releases made by the DBM for the implementation of the
entire Arterial Road Links Project – Phase IV, which includes the Catanduanes Circumferential
Road Improvement Project, were covered by the necessary appropriations made by law,
specifically the General Appropriations Act (GAA). Further, the requirements and procedures
prescribed for the release of the said funds were duly complied with.
For its part, private respondent China Road & Bridge Corporation similarly assails the standing
of the petitioners, either as taxpayers or, in the case of petitioner Abaya, as a former
lawmaker, to file the present suit. In addition, it is also alleged that, by filing the petition directly
to this Court, the petitioners failed to observe the hierarchy of courts.
On the merits, private respondent China Road & Bridge Corporation asserts that the applicable
law to govern the bidding of the CP I project was EO 40, not RA 9184, because the former was
the law governing the procurement of government projects at the time that it was bidded out.
EO 40 was issued by the Office of the President on October 8, 2001 and Section 1 thereof
states that:
SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a)
goods, supplies, materials and related services; (b) civil works; and (c) consulting services, by
all National Government agencies, including State Universities and Colleges (SUCs),
Government-Owned or Controlled Corporations (GOCCs) and Government Financial
Institutions (GFIs), hereby referred to as the ‘Agencies.’ This Executive Order shall cover the
procurement process from the pre-procurement conference up to the award of contract.
xxx
The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the other
hand, RA 9184 was signed into law only on January 10, 2003. Since the law in effect at the
time the procurement process was initiated was EO 40, private respondent China Road &
Bridge Corporation submits that it should be the said law which should govern the entire
procurement process relative to the CP I project.
EO 40 expressly recognizes as an exception from the application of the provisions thereof on
approved budget ceilings, those projects financed by international financing institutions (IFIs)
and foreign bilateral sources. Section 1 thereof, quoted in part earlier, further states:
SEC. 1. Scope and Application. x x x
Nothing in this Order shall negate any existing and future government commitments with
respect to the bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and other similar foreign sources.
Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it
provides:
82
For procurement financed wholly or partly from Official Development Assistance (ODA) funds
from International Financing Institutions (IFIs), as well as from bilateral and other similar
foreign sources, the corresponding loan/grant agreement governing said funds as negotiated
and agreed upon by and between the Government and the concerned IFI shall be observed.
Private respondent China Road & Bridge Corporation thus postulates that following EO 40, the
procurement of goods and services for the CP I project should be governed by the terms and
conditions of Loan Agreement No. PH-P204 entered into between the JBIC and the Philippine
Government. Pertinently, Section 5.06 of the JBIC Procurement Guidelines prohibits the
setting of ceilings on bid prices.
Private respondent China Road & Bridge Corporation claims that when it submitted its bid for
the CP I project, it relied in good faith on the provisions of EO 40. It was allegedly on the basis
of the said law that the DPWH awarded the project to private respondent China Road & Bridge
Coporation even if its bid was higher than the ABC. Under the circumstances, RA 9184 could
not be applied retroactively for to do so would allegedly impair the vested rights of private
respondent China Road & Bridge Corporation arising from its contract with the DPWH.
It is also contended by private respondent China Road & Bridge Corporation that even
assuming arguendo that RA 9184 could be applied retroactively, it is still the terms of Loan
Agreement No. PH-P204 which should govern the procurement of goods and services for the
CP I project. It supports its theory by characterizing the said loan agreement, executed
pursuant to the Exchange of Notes between the Government of Japan and the Philippine
Government, as an executive agreement.
Private respondent China Road & Bridge Corporation, like the public respondents, cites RA
4860 as the basis for the Exchange of Notes and Loan Agreement No. PH-P204. As an
international or executive agreement, the Exchange of Notes and Loan Agreement No. PH-
P204 allegedly created a legally binding obligation on the parties.
The following excerpt of the deliberations of the Bicameral Conference Committee on the
Disagreeing Provision of Senate Bill No. 2248 and House Bill No. 4809 is cited by private
respondent China Road & Bridge Corporation to support its contention that it is the intent of the
lawmakers to exclude from the application of RA 9184 those foreign-funded projects:
xxx
REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for
the inclusion of foreign contracts, may we just state that foreign contracts have, of course,
been brought into the ambit of the law because of the Filipino counterpart for this foreign
projects, they are no longer strictly foreign in nature but fall under the laws of the Philippine
government.
THE CHAIRMAN (SEN. ANGARA). Okay. I think that’s pretty clear. I think the possible
concern is that some ODA are with strings attached especially the Japanese. The Japanese
are quite strict about that, that they are (sic) even provide the architect and the design,
etcetera, plus, of course, the goods that will be supplied.
Now, I think we’ve already provided that this is open to all and we will recognize our
international agreements so that this bill will not also restrict the flow of foreign funding,
because some countries now make it a condition that they supply both services and goods
especially the Japanese.
So I think we can put a sentence that we continue to honor our international obligations, di ba
Laura?
MR. ENCARNACION. Actually, subject to any treaty.
THE CHAIRMAN (SEN. ANGARA). ‘Yun pala eh. That should allay their anxiety and concern.
Okay, buti na lang for the record para malaman nila na we are conscious sa ODA. 37
Private respondent China Road & Bridge Corporation submits that based on the provisions of
the Exchange of Notes and Loan Agreement No. PH-P204, it was rightfully and legally
awarded the CP I project. It urges the Court to dismiss the petition for lack of merit.
The Court’s Rulings
Petitioners, as taxpayers, possess locus standi to file the present suit
Briefly stated, locus standi is "a right of appearance in a court of justice on a given
question."38 More particularly, it is a party’s personal and substantial interest in a case such
that he has sustained or will sustain direct injury as a result of the governmental act being
challenged. It calls for more than just a generalized grievance. The term "interest" means a
material interest, an interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. 39 Standing or locus standi is a
peculiar concept in constitutional law40 and the rationale for requiring a party who challenges
the constitutionality of a statute to allege such a personal stake in the outcome of the
controversy is "to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions." 41
Locus standi, however, is merely a matter of procedure 42 and it has been recognized that in
some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act but by concerned citizens, taxpayers or voters
who actually sue in the public interest.43 Consequently, the Court, in a catena of cases,44 has
invariably adopted a liberal stance on locus standi, including those cases involving taxpayers.
83
The prevailing doctrine in taxpayer’s suits is to allow taxpayers to question contracts entered
into by the national government or government- owned or controlled corporations allegedly in
contravention of law.45 A taxpayer is allowed to sue where there is a claim that public funds are
illegally disbursed, or that public money is being deflected to any improper purpose, or that
there is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.46 Significantly, a taxpayer need not be a party to the contract to challenge its validity.47
In the present case, the petitioners are suing as taxpayers. They have sufficiently
demonstrated that, notwithstanding the fact that the CP I project is primarily financed from
loans obtained by the government from the JBIC, nonetheless, taxpayers’ money would be or
is being spent on the project considering that the Philippine Government is required to allocate
a peso-counterpart therefor. The public respondents themselves admit that appropriations for
these foreign-assisted projects in the GAA are composed of the loan proceeds and the peso-
counterpart. The counterpart funds, the Solicitor General explains, refer to the component of
the project cost to be financed from government-appropriated funds, as part of the
government’s commitment in the implementation of the project. 48 Hence, the petitioners
correctly asserted their standing since a part of the funds being utilized in the implementation
of the CP I project partakes of taxpayers’ money.
Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to
the CP I project, in particular, and to foreign-funded government projects, in general, and the
fact that public interest is indubitably involved considering the public expenditure of millions of
pesos, warrant the Court to adopt in the present case its liberal policy on locus standi.
In any case, for reasons which will be discussed shortly, the substantive arguments raised by
the petitioners fail to persuade the Court as it holds that Resolution No. PJHL-A-04-012 is
valid. As a corollary, the subsequent contract entered into by and between the DPWH and
private respondent China Road & Bridge Corporation is likewise valid.
History of Philippine Procurement Laws
It is necessary, at this point, to give a brief history of Philippine laws pertaining to procurement
through public bidding. The United States Philippine Commission introduced the American
practice of public bidding through Act No. 22, enacted on October 15, 1900, by requiring the
Chief Engineer, United States Army for the Division of the Philippine Islands, acting as
purchasing agent under the control of the then Military Governor, to advertise and call for a
competitive bidding for the purchase of the necessary materials and lands to be used for the
construction of highways and bridges in the Philippine Islands.49 Act No. 74, enacted on
January 21, 1901 by the Philippine Commission, required the General Superintendent of
Public Instruction to purchase office supplies through competitive public bidding.50 Act No. 82,
approved on January 31, 1901, and Act No. 83, approved on February 6, 1901, required the
municipal and provincial governments, respectively, to hold competitive public biddings in the
making of contracts for public works and the purchase of office supplies. 51
On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of
Supply and with its creation, public bidding became a popular policy in the purchase of
supplies, materials and equipment for the use of the national government, its subdivisions and
instrumentalities.52 On February 3, 1936, then President Manuel L. Quezon issued Executive
Order No. 16 declaring as a matter of general policy that government contracts for public
service or for furnishing supplies, materials and equipment to the government should be
subjected to public bidding.53 The requirement of public bidding was likewise imposed for
public works of construction or repair pursuant to the Revised Administrative Code of 1917.
Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963,
reiterated the directive that no government contract for public service or for furnishing supplies,
materials and equipment to the government or any of its branches, agencies or
instrumentalities, should be entered into without public bidding except for very extraordinary
reasons to be determined by a Committee constituted thereunder. Then President Ferdinand
Marcos issued PD 1594 prescribing guidelines for government infrastructure projects and
Section 454 thereof stated that they should generally be undertaken by contract after
competitive public bidding.
Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines
for government negotiated contracts. Pertinently, Section 62 of the Administrative Code of
1987 reiterated the requirement of competitive public bidding in government projects. In 1990,
Congress passed RA 6957,55 which authorized the financing, construction, operation and
maintenance of infrastructure by the private sector. RA 7160 was likewise enacted by
Congress in 1991 and it contains provisions governing the procurement of goods and locally-
funded civil works by the local government units.
Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for
the procurement of goods and supplies by the national government. Then President Joseph
Ejercito Estrada issued Executive Order No. 201 (2000), providing additional guidelines in the
procurement of goods and supplies by the national government. Thereafter, he issued
Executive Order No. 262 (2000) amending EO 302 (1996) and EO 201 (2000).
On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied
upon by the respondents, entitled Consolidating Procurement Rules and Procedures for All
National Government Agencies, Government-Owned or Controlled Corporations and
Government Financial Institutions, and Requiring the Use of the Government Procurement
System. It accordingly repealed, amended or modified all executive issuances, orders, rules
and regulations or parts thereof inconsistent therewith. 56
On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26,
2004, or fifteen days after its publication in two newspapers of general circulation. 57 It
expressly repealed, among others, EO 40, EO 262 (2000), EO 302(1996) and PD 1594, as
amended:
84
SEC. 76. Repealing Clause. —This law repeals Executive Order No. 40, series of 2001,
entitled "Consolidating Procurement Rules and Procedures for All National Government
Agencies, Government Owned or Controlled Corporations and/or Government Financial
Institutions, and Requiring the Use of the Government Electronic Procurement System";
Executive Order No. 262, series of 1996, entitled "Amending Executive Order No. 302, series
of 1996, entitled Providing Policies, Guidelines, Rules and Regulations for the Procurement of
Goods/Supplies by the National Government" and Section 3 of Executive Order No. 201,
series of 2000, entitled "Providing Additional Policies and Guidelines in the Procurement of
Goods/Supplies by the National Government"; Executive Order No. 302, series of 1996,
entitled "Providing Policies, Guidelines, Rules and Regulations for the Procurement of
Goods/Supplies by the National Government" and Presidential Decree No. 1594 dated June
11, 1978, entitled "Prescribing Policies, Guidelines, Rules and Regulations for Government
Infrastructure Contracts." This law amends Title Six, Book Two of Republic Act No. 7160,
otherwise known as the "Local Government Code of 1991"; the relevant provisions of
Executive Order No. 164, series of 1987, entitled "Providing Additional Guidelines in the
Processing and Approval of Contracts of the National Government"; and the relevant
provisions of Republic Act No. 7898 dated February 23, 1995, entitled "An Act Providing for the
Modernization of the Armed Forces of the Philippines and for Other Purposes." Any other law,
presidential decree or issuance, executive order, letter of instruction, administrative order,
proclamation, charter, rule or regulation and/or parts thereof contrary to or inconsistent with the
provisions of this Act is hereby repealed, modified or amended accordingly.
In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof
provides that "[i]n the contracting of any loan, credit or indebtedness under this Act, the
President of the Philippines may, when necessary, agree to waive or modify the application of
any law granting preferences or imposing restrictions on international competitive bidding x x x
Provided, finally, That the method and procedure in the comparison of bids shall be the subject
of agreement between the Philippine Government and the lending institution."
EO 40, not RA 9184, is applicable to the procurement
process undertaken for the CP I project. RA 9184
cannot be given retroactive application.
It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid for
its implementation was published in two leading national newspapers, namely, the Manila
Times and Manila Standard on November 22, 29 and December 5, 2002. At the time, the law
in effect was EO 40. On the other hand, RA 9184 took effect two months later or on January
26, 2003. Further, its full implementation was even delayed as IRR-A was only approved by
President Arroyo on September 18, 2003 and subsequently published on September 23, 2003
in the Manila Times and Malaya newspapers.58
The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it is
explicitly provided in Section 1 thereof that:
SEC. 1. Scope and Application. – This Executive Order shall apply to see procurement of (a)
goods, supplies, materials and related service; (b) civil works; and (c) consulting services, by
all National Government agencies, including State Universities and Colleges (SUCs),
Government-Owned or –Controlled Corporations (GOCCs) and Government Financial
Institutions (GFIs), hereby referred to as "Agencies." This Executive Order shall cover the
procurement process from the pre-procurement conference up to the award of the contract.
Nothing in this Order shall negate any existing and future government commitments with
respect to the bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and similar foreign sources.
The procurement process basically involves the following steps: (1) pre-procurement
conference; (2) advertisement of the invitation to bid; (3) pre-bid conference; (4) eligibility
check of prospective bidders; (5) submission and receipt of bids; (6) modification and
withdrawal of bids; (7) bid opening and examination; (8) bid evaluation; (9) post qualification;
(10) award of contract and notice to proceed.59 Clearly then, when the Invitation to Prequalify
and to Bid for the implementation of the CP I project was published on November 22, 29 and
December 5, 2002, the procurement process thereof had already commenced and the
application of EO 40 to the procurement process for the CP I project had already attached.
RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP
I project because it is well settled that a law or regulation has no retroactive application unless
it expressly provides for retroactivity.60Indeed, Article 4 of the Civil Code is clear on the matter:
"[l]aws shall have no retroactive effect, unless the contrary is provided." In the absence of such
categorical provision, RA 9184 will not be applied retroactively to the CP I project whose
procurement process commenced even before the said law took effect.
That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from the
IRR-A formulated by the Joint Congressional Oversight Committee (composed of the
Chairman of the Senate Committee on Constitutional Amendments and Revision of Laws, and
two members thereof appointed by the Senate President and the Chairman of the House
Committee on Appropriations, and two members thereof appointed by the Speaker of the
House of Representatives) and the Government Procurement Policy Board (GPPB). Section
77 of the IRR-A states, thus:
SEC. 77. Transitory Clause
In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160
and its IRR, or other applicable laws, as the case may be, shall govern.
In cases where the advertisements or invitations for bids were issued after the effectivity of the
Act but before the effectivity of this IRR-A, procuring entities may continue adopting the
85
procurement procedures, rules and regulations provided in E.O. 40 and its IRR, P.D. 1594 and
its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be.
In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to
the effectivity of RA 9184, such as in the case of the CP I project, the provisions of EO 40 and
its IRR, and PD 1594 and its IRR in the case of national government agencies, and RA 7160
and its IRR in the case of local government units, shall govern.
Admittedly, IRR-A covers only fully domestically-funded procurement activities from
procurement planning up to contract implementation and that it is expressly stated that IRR-B
for foreign-funded procurement activities shall be subject of a subsequent
issuance.61 Nonetheless, there is no reason why the policy behind Section 77 of IRR-A cannot
be applied to foreign-funded procurement projects like the CP I project. Stated differently, the
policy on the prospective or non-retroactive application of RA 9184 with respect to
domestically-funded procurement projects cannot be any different with respect to foreign-
funded procurement projects like the CP I project. It would be incongruous, even absurd, to
provide for the prospective application of RA 9184 with respect to domestically-funded
procurement projects and, on the other hand, as urged by the petitioners, apply RA 9184
retroactively with respect to foreign- funded procurement projects. To be sure, the lawmakers
could not have intended such an absurdity.
Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule
embodied in Article 4 of the Civil Code on prospectivity of laws, the Court holds that the
procurement process for the implementation of the CP I project is governed by EO 40 and its
IRR, not RA 9184.
Under EO 40, the award of the contract to private
respondent China Road & Bridge Corporation is valid
Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the upper
limit or ceiling of the bid price. Bid prices which exceed this ceiling shall be disqualified outright
from further participating in the bidding. There shall be no lower limit to the amount of the
award. x x x" It should be observed that this text is almost similar to the wording of Section 31
of RA 9184, relied upon by the petitioners in contending that since the bid price of private
respondent China Road & Bridge Corporation exceeded the ABC, then it should not have been
awarded the contract for the CP I project.
Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those
government commitments with respect to bidding and award of contracts financed partly or
wholly with funds from international financing institutions as well as from bilateral and other
similar foreign sources. The pertinent portion of Section 1 of EO 40 is quoted anew:
SEC. 1. Scope and Application. – x x x
Nothing in this Order shall negate any existing and future government commitments with
respect to the bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and similar foreign sources.
In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents
as likewise authorizing the President, in the contracting of any loan, credit or indebtedness
thereunder, "when necessary, agree to waive or modify the application of any law granting
preferences or imposing restrictions on international competitive bidding x x x." The said
provision of law further provides that "the method and procedure in the comparison of bids
shall be the subject of agreement between the Philippine Government and the lending
institution."
Consequently, in accordance with these applicable laws, the procurement of goods and
services for the CP I project is governed by the corresponding loan agreement entered into by
the government and the JBIC, i.e., Loan Agreement No. PH-P204. The said loan agreement
stipulated that the procurement of goods and services for the Arterial Road Links Development
Project (Phase IV), of which CP I is a component, is to be governed by the JBIC Procurement
Guidelines. Section 5.06, Part II (International Competitive Bidding) thereof quoted earlier
reads:
Section 5.06. Evaluation and Comparison of Bids
xxx
(e) Any procedure under which bids above or below a predetermined bid value assessment
are automatically disqualified is not permitted. 62
It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid
prices. On the other hand, it enjoins the award of the contract to the bidder whose bid has
been determined to be the lowest evaluated bid. The pertinent provision, quoted earlier, is
reiterated, thus:
Section 5.09. Award of Contract
The contract is to be awarded to the bidder whose bid has been determined to be the lowest
evaluated bid and who meets the appropriate standards of capability and financial resources.
A bidder shall not be required as a condition of award to undertake responsibilities or work not
stipulated in the specifications or to modify the bid. 63
Since these terms and conditions are made part of Loan Agreement No. PH-P204, the
government is obliged to observe and enforce the same in the procurement of goods and
services for the CP I project. As shown earlier, private respondent China Road & Bridge
Corporation’s bid was the lowest evaluated bid, albeit 28.95% higher than the ABC. In
86
accordance with the JBIC Procurement Guidelines, therefore, it was correctly awarded the
contract for the CP I project.
Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes dated
December 27, 1999 and Loan Agreement No. PH-P204 would still govern the procurement for
the CP I project
For clarity, Section 4 of RA 9184 is quoted anew, thus:
SEC. 4. Scope and Applications. – This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or
foreign, by all branches and instrumentalities of government, its departments, offices and
agencies, including government-owned and/or –controlled corporations and local government
units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or
executive agreement affecting the subject matter of this Act to which the Philippine
government is a signatory shall be observed.
The petitioners, in order to place the procurement process undertaken for the CP I project
within the ambit of RA 9184, vigorously assert that Loan Agreement No. PH-P204 is neither a
treaty, an international agreement nor an executive agreement. They cite Executive Order No.
459 dated November 25, 1997 where the three agreements are defined in this wise:
a) International agreement – shall refer to a contract or understanding, regardless of
nomenclature, entered into between the Philippines and another government in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments.
b) Treaties – international agreements entered into by the Philippines which require
legislative concurrence after executive ratification. This term may include compacts
like conventions, declarations, covenants and acts.
c) Executive agreements – similar to treaties except that they do not require
legislative concurrence.64
The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the
three categories because to be any of the three, an agreement had to be one where the
parties are the Philippines as a State and another State. The JBIC, the petitioners maintain, is
a Japanese banking agency, which presumably has a separate juridical personality from the
Japanese Government.
The petitioners’ arguments fail to persuade. The Court holds that Loan Agreement No. PH-
P204 taken in conjunction with the Exchange of Notes dated December 27, 1999 between the
Japanese Government and the Philippine Government is an executive agreement.
To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the
Philippine Government pursuant to the Exchange of Notes executed by and between Mr.
Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and
then Foreign Affairs Secretary Siazon, in behalf of their respective governments. The
Exchange of Notes expressed that the two governments have reached an understanding
concerning Japanese loans to be extended to the Philippines and that these loans were aimed
at promoting our country’s economic stabilization and development efforts.
Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so
entered by the parties "[i]n the light of the contents of the Exchange of Notes between the
Government of Japan and the Government of the Republic of the Philippines dated December
27, 1999, concerning Japanese loans to be extended with a view to promoting the economic
stabilization and development efforts of the Republic of the Philippines." 65 Under the
circumstances, the JBIC may well be considered an adjunct of the Japanese Government.
Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of
Notes. It forms part of the Exchange of Notes such that it cannot be properly taken
independent thereof.
In this connection, it is well to understand the definition of an "exchange of notes" under
international law. The term is defined in the United Nations Treaty Collection in this wise:
An "exchange of notes" is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State to record its assent.
The signatories of the letters may be government Ministers, diplomats or departmental heads.
The technique of exchange of notes is frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of legislative approval.66
It is stated that "treaties, agreements, conventions, charters, protocols, declarations,
memoranda of understanding, modus vivendi and exchange of notes" all refer to "international
instruments binding at international law."67 It is further explained that-
Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are
the result of long practice among the States, which have accepted them as binding norms in
their mutual relations. Therefore, they are regarded as international customary law. Since there
was a general desire to codify these customary rules, two international conventions were
negotiated. The 1969 Vienna Convention on the Law of Treaties ("1969 Vienna Convention"),
which entered into force on 27 January 1980, contains rules for treaties concluded between
States. The 1986 Vienna Convention on the Law of Treaties between States and International
Organizations ("1986 Vienna Convention"), which has still not entered into force, added rules
for treaties with international organizations as parties. Both the 1969 Vienna Convention and
the 1986 Vienna Convention do not distinguish between the different designations of these
87
instruments. Instead, their rules apply to all of those instruments as long as they meet the
common requirements.68
Significantly, an exchange of notes is considered a form of an executive agreement, which
becomes binding through executive action without the need of a vote by the Senate or
Congress. The following disquisition by Francis B. Sayre, former United States High
Commissioner to the Philippines, entitled "The Constitutionality of Trade Agreement Acts,"
quoted in Commissioner of Customs v. Eastern Sea Trading,69 is apropos:
signatory shall be observed," the DPWH, as the executing agency of the projects financed by
Loan Agreement No. PH-P204, rightfully awarded the contract for the implementation of civil
works for the CP I project to private respondent China Road & Bridge Corporation.
WHEREFORE, premises considered, the petition is DISMISSED.
SO ORDERED.

Agreements concluded by the President which fall short of treaties are commonly referred to
as executive agreements and are no less common in our scheme of government than are the
more formal instruments – treaties and conventions. They sometimes take the form of
exchange of notes and at other times that of more formal documents denominated
"agreements" or "protocols". The point where ordinary correspondence between this and other
governments ends and agreements – whether denominated executive agreements or
exchange of notes or otherwise – begin, may sometimes be difficult of ready ascertainment. It
would be useless to undertake to discuss here the large variety of executive agreements as
such, concluded from time to time. Hundreds of executive agreements, other than those
entered into under the trade-agreements act, have been negotiated with foreign governments.
x x x70

The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of
Japan would extend loans to the Philippines with a view to promoting its economic stabilization
and development efforts; Loan I in the amount of Y79,8651,000,000 would be extended by the
JBIC to the Philippine Government to implement the projects in the List A (including the Arterial
Road Links Development Project - Phase IV); and that such loan (Loan I) would be used to
cover payments to be made by the Philippine executing agencies to suppliers, contractors
and/or consultants of eligible source countries under such contracts as may be entered into
between them for purchases of products and/or services required for the implementation of the
projects enumerated in the List A.71 With respect to the procurement of the goods and services
for the projects, it bears reiterating that as stipulated:

3. The Government of the Republic of the Philippines will ensure that the products and/or
services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
Bank, which set forth, inter alia, the procedures of international tendering to be followed except
where such procedures are inapplicable or inappropriate. 72 BAYAN MUNA, as represented by Rep. SATUR G.R. No. 159618
OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA
The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids L. MAZA,
above or below a predetermined bid value assessment are automatically disqualified. Petitioner, Present:
Succinctly put, it absolutely prohibits the imposition of ceilings on bids.

Under the fundamental principle of international law of pacta sunt servanda, 73 which is, in fact, CORONA, C.J.,
embodied in Section 4 of RA 9184 as it provides that "[a]ny treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a
88
 CARPIO,

CARPIO MORALES, The Facts

- versus - VELASCO, JR.,

NACHURA, Petitioner Bayan Muna is a duly registered party-list group established to represent
the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the
LEONARDO-DE CASTRO, Secretary of Foreign Affairs during the period material to this case. Respondent Alberto
Romulo was impleaded in his capacity as then Executive Secretary.[2]
BRION,

PERALTA, Rome Statute of the International Criminal Court

ALBERTO ROMULO, in his capacity as Executive
Secretary, and BLAS F. OPLE, in his capacity as
Secretary of Foreign Affairs,
BERSAMIN, Having a key determinative bearing on this case is the Rome Statute[3] establishing
the International Criminal Court (ICC) with the power to exercise its jurisdiction over persons
DEL CASTILLO, for the most serious crimes of international concern x x x and shall be complementary to the
national criminal jurisdictions.[4] The serious crimes adverted to cover those considered grave
ABAD, under international law, such as genocide, crimes against humanity, war crimes, and crimes of
aggression.[5]
VILLARAMA, JR.,

Respondents. PEREZ, On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed
the Rome Statute which, by its terms, is subject to ratification, acceptance or approval by the
MENDOZA, and signatory states.[6] As of the filing of the instant petition, only 92 out of the 139 signatory
countries appear to have completed the ratification, approval and concurrence
SERENO, JJ. process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement

Promulgated:
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note
No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-surrender
bilateral agreement (Agreement, hereinafter) between the USA and the RP.
February 1, 2011
Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N BFO-028-03,
x-----------------------------------------------------------------------------------------x hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the
US proposals embodied under the US Embassy Note adverted to and put in effect
DECISION the Agreement with the US government. In esse, the Agreement aims to protect what it refers
to and defines as persons of the RP and US from frivolous and harassment suits that might be
VELASCO, JR., J.: brought against them in international tribunals.[8] It is reflective of the increasing pace of the
strategic security and defense partnership between the two countries. As of May 2, 2003,
similar bilateral agreements have been effected by and between the US and 33 other
countries.[9]
The Case

The Agreement pertinently provides as follows:

This petition[1] for certiorari, mandamus and prohibition under Rule 65 assails and
1. For purposes of this Agreement, persons are current or former
seeks to nullify the Non-Surrender Agreement concluded by and between the Republic of the
Government officials, employees (including contractors), or military
Philippines (RP) and the United States of America (USA).
personnel or nationals of one Party.
89
 2. Persons of one Party present in the territory of the other shall
not, absent the express consent of the first Party,
(a) be surrendered or transferred by any means to any international
tribunal for any purpose, unless such tribunal has been
established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity
or third country, or expelled to a third country, for the purpose
of surrender to or transfer to any international tribunal, unless
such tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a
person of the Philippines to a third country, the [US] will not agree to the
surrender or transfer of that person by the third country to any international
tribunal, unless such tribunal has been established by the UN Security
Council, absent the express consent of the Government of the Republic of
the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a
person of the [USA] to a third country, the [GRP] will not agree to the
surrender or transfer of that person by the third country to any international
tribunal, unless such tribunal has been established by the UN Security
Council, absent the express consent of the Government of the [US].
5. This Agreement shall remain in force until one year after the date
on which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply with
respect to any act occurring, or any allegation arising, before the effective
date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of
the non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28,
2003 that the exchange of diplomatic notes constituted a legally binding agreement under
international law; and that, under US law, the said agreement did not require the advice and
consent of the US Senate.[10]
In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as unconstitutional, or
at least declared as without force and effect.
For their part, respondents question petitioners standing to maintain a suit and
counter that the Agreement, being in the nature of an executive agreement, does not require
Senate concurrence for its efficacy. And for reasons detailed in their comment, respondents
assert the constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x
GRAVELY ABUSED THEIR DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US NON
SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03
DATED 13 MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH
THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents
gravely abused their discretion when they capriciously abandoned,
waived and relinquished our only legitimate recourse through
the Rome Statute of the [ICC] to prosecute and try persons as
defined in the x x x Agreement, x x x or literally any conduit of
American interests, who have committed crimes of genocide,
crimes against humanity, war crimes and the crime of aggression,
thereby abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification of the Rome
Statute of the [ICC] the [RP] President and the [DFA] Secretary x x
x are obliged by the principle of good faith to refrain from doing all
acts which would substantially impair the value of the undertaking
as signed.
C. Whether the x x x Agreement constitutes an act which defeats the
object and purpose of the Rome Statute of the International
Criminal Court and contravenes the obligation of good faith inherent
in the signature of the President affixed on the Rome Statute of the
International Criminal Court, and if so whether the x x
x Agreementis void and unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and
unenforceable for grave abuse of discretion amounting to lack or
excess of jurisdiction in connection with its execution.
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB
INITIO FOR CONTRACTING OBLIGATIONS THAT ARE EITHER
IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND
EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST TWO-
THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.[11]
90
 The foregoing issues may be summarized into two: first, whether or not
the Agreement was contracted validly, which resolves itself into the question of whether or not
respondents gravely abused their discretion in concluding it; and second, whether or not
the Agreement, which has not been submitted to the Senate for concurrence, contravenes and
undermines the Rome Statute and other treaties. But because respondents expectedly raised
it, we shall first tackle the issue of petitioners legal standing.
The Courts Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the
validity or invalidity of the Agreement carries with it constitutional significance and is of
paramount importance that justifies its standing. Cited in this regard is what is usually referred
to as the emergency powers cases,[12] in which ordinary citizens and taxpayers were accorded
the personality to question the constitutionality of executive issuances.
Locus standi is a right of appearance in a court of justice on a given
question.[13] Specifically, it is a partys personal and substantial interest in a case where he has
sustained or will sustain direct injury as a result [14] of the act being challenged, and calls for
more than just a generalized grievance.[15] The term interest refers to material interest, as
distinguished from one that is merely incidental.[16] The rationale for requiring a party who
challenges the validity of a law or international agreement to allege such a personal stake in
the outcome of the controversy is to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.[17]
Locus standi, however, is merely a matter of procedure and it has been recognized
that, in some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act, but by concerned citizens, taxpayers, or voters
who actually sue in the public interest.[18] Consequently, in a catena of cases,[19] this Court has
invariably adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic and the
citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action, a
petitioner needs to meet certain specific requirements before he can be clothed with
standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc.[20] expounded on this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been or is
about to be denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by reason of
the statute or act complained of. In fine, when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.[21]
In the case at bar, petitioners representatives have complied with the qualifying
conditions or specific requirements exacted under the locus standi rule. As citizens, their
interest in the subject matter of the petition is direct and personal. At the very least, their
assertions questioning the Agreement are made of a public right, i.e., to ascertain that
the Agreement did not go against established national policies, practices, and obligations
bearing on the States obligation to the community of nations.
At any event, the primordial importance to Filipino citizens in general of the issue at
hand impels the Court to brush aside the procedural barrier posed by the traditional
requirement of locus standi, as we have done in a long line of earlier cases, notably in the old
but oft-cited emergency powers cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases of
transcendental importance, we wrote again in Bayan v. Zamora,[24] The Court may relax the
standing requirements and allow a suit to prosper even where there is no direct injury to the
party claiming the right of judicial review.
Moreover, bearing in mind what the Court said in Taada v. Angara, that it will not
shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government, [25] we
cannot but resolve head on the issues raised before us. Indeed, where an action of any branch
of government is seriously alleged to have infringed the Constitution or is done with grave
abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to settle
it. As in this petition, issues are precisely raised putting to the fore the propriety of
the Agreement pending the ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold
posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized international
doctrines, practices, and jargonsis untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the
generally accepted principles of international law and international jurisprudence as part of the
91
law of the land and adheres to the policy of peace, cooperation, and amity with all
nations.[26] An exchange of notes falls into the category of inter-governmental
agreements,[27] which is an internationally accepted form of international agreement. The
United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine agreement, that has
many similarities with the private law contract. The agreement consists of
the exchange of two documents, each of the parties being in the possession
of the one signed by the representative of the other. Under the usual
procedure, the accepting State repeats the text of the offering State to
record its assent. The signatories of the letters may be government
Ministers, diplomats or departmental heads. The technique of exchange of
notes is frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval. [28]
In another perspective, the terms exchange of notes and executive agreements have
been used interchangeably, exchange of notes being considered a form of executive
agreement that becomes binding through executive action.[29] On the other hand, executive
agreements concluded by the President sometimes take the form of exchange of notes and at
other times that of more formal documents denominated agreements or protocols. [30] As former
US High Commissioner to the Philippines Francis B. Sayre observed in his work, The
Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other
governments ends and agreements whether denominated executive
agreements or exchange of notes or otherwise begin, may sometimes be
difficult of ready ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the
Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as
consent to be boundis a recognized mode of concluding a legally binding international written
contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an
international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.[32] International agreements may be in the
form of (1) treaties that require legislative concurrence after executive ratification; or (2)
executive agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject matters
than treaties.[33]
Under international law, there is no difference between treaties and executive
agreements in terms of their binding effects on the contracting states concerned,[34] as long as
the negotiating functionaries have remained within their powers. [35] Neither, on the domestic
sphere, can one be held valid if it violates the Constitution. [36] Authorities are, however, agreed
that one is distinct from another for accepted reasons apart from the concurrence-requirement
aspect.[37] As has been observed by US constitutional scholars, a treaty has greater dignity
than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the Senate, and the people; [38] a ratified treaty,
unlike an executive agreement, takes precedence over any prior statutory enactment. [39]
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it
does of the nature of a treaty; hence, it must be duly concurred in by the Senate.Petitioner
takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court
reproduced the following observations made by US legal scholars: [I]nternational agreements
involving political issues or changes of national policy and those involving international
arrangements of a permanent character usually take the form of treaties [while] those
embodying adjustments of detail carrying out well established national policies and traditions
and those involving arrangements of a more or less temporary nature take the form of
executive agreements. [40]
Pressing its point, petitioner submits that the subject of the Agreement does not fall
under any of the subject-categories that are enumerated in the Eastern Sea Trading case, and
that may be covered by an executive agreement, such as commercial/consular relations, most-
favored nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of
Zambales and Merchant,[41] holding that an executive agreement through an exchange of
notes cannot be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international
agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast
rules on the propriety of entering, on a given subject, into a treaty or an executive agreement
as an instrument of international relations. The primary consideration in the choice of the form
of agreement is the parties intent and desire to craft an international agreement in the form
they so wish to further their respective interests. Verily, the matter of form takes a back seat
when it comes to effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each labor under
the pacta sunt servanda[42] principle.
As may be noted, almost half a century has elapsed since the Court rendered its
decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more
complex and the domain of international law wider, as to include such subjects as human
rights, the environment, and the sea. In fact, in the US alone, the executive agreements
executed by its President from 1980 to 2000 covered subjects such as defense, trade,
scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms
limitation, and nuclear safety, among others.[43] Surely, the enumeration in Eastern Sea
Trading cannot circumscribe the option of each state on the matter of which the international
92
agreement format would be convenient to serve its best interest. As Francis Sayre said in his
work referred to earlier:
x x x It would be useless to undertake to discuss here the large
variety of executive agreements as such concluded from time to time.
Hundreds of executive agreements, other than those entered into under the
trade-agreement act, have been negotiated with foreign governments. x x x
They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom
matters and commercial relations generally, international claims, postal
matters, the registration of trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treaty-authorized[44] or
a treaty-implementing executive agreement,[45] which necessarily would cover the same
matters subject of the underlying treaty.
But over and above the foregoing considerations is the fact thatsave for the situation
and matters contemplated in Sec. 25, Art. XVIII of the Constitution [46]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.
Petitioners reliance on Adolfo[47] is misplaced, said case being inapplicable owing to
different factual milieus. There, the Court held that an executive agreement cannot be used to
amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive
agreement that does not require the concurrence of the Senate for its ratification may not be
used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the
Executive and the Senate. The presence of a treaty, purportedly being subject to amendment
by an executive agreement, does not obtain under the premises.
Considering the above discussion, the Court need not belabor at length the third main
issue raised, referring to the validity and effectivity of the Agreement without the concurrence
by at least two-thirds of all the members of the Senate. The Court has, in Eastern Sea
Trading,[48] as reiterated in Bayan,[49] given recognition to the obligatory effect of executive
agreements without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements
without the necessity of subsequent Congressional approval has been
confirmed by long usage. From the earliest days of our history, we have
entered executive agreements covering such subjects as commercial and
consular relations, most favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement
of claims. The validity of these has never been seriously questioned by our
courts.
The Agreement Not in Contravention of the Rome Statute
It is the petitioners next contention that the Agreement undermines the establishment
of the ICC and is null and void insofar as it unduly restricts the ICCs jurisdiction and infringes
upon the effectivity of the Rome Statute. Petitioner posits that the Agreement was constituted
solely for the purpose of providing individuals or groups of individuals with immunity from the
jurisdiction of the ICC; and such grant of immunity through non-surrender agreements
allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes
that state parties with non-surrender agreements are prevented from meeting their obligations
under the Rome Statute, thereby constituting a breach of Arts. 27, [50] 86,[51] 89[52] and
90[53] thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to
ensure that those responsible for the worst possible crimes are brought to justice in all cases,
primarily by states, but as a last resort, by the ICC; thus, any agreementlike the non-surrender
agreementthat precludes the ICC from exercising its complementary function of acting when a
state is unable to or unwilling to do so, defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of
a signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from
performing acts that substantially devalue the purpose and object of the Statute, as
signed. Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact that
it has an immoral purpose or is otherwise at variance with a priorly executed treaty.
Contrary to petitioners pretense, the Agreement does not contravene or undermine,
nor does it differ from, the Rome Statute. Far from going against each other, one complements
the other. As a matter of fact, the principle of complementarity underpins the creation of the
ICC. As aptly pointed out by respondents and admitted by petitioners, the jurisdiction of the
ICC is to be complementary to national criminal jurisdictions [of the signatory states]. [54] Art. 1
of the Rome Statute pertinently provides:
Article 1
The Court
An International Crimininal Court (the Court) is hereby
established. It x x x shall have the power to exercise its jurisdiction over
persons for the most serious crimes of international concern, as referred to
in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed
by the provisions of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute declares that it is
the duty of every State to exercise its criminal jurisdiction over those responsible for
93
international crimes. This provision indicates that primary jurisdiction over the so-called
international crimes rests, at the first instance, with the state where the crime was committed;
secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 1 [55] of
the Rome Statute.
Of particular note is the application of the principle of ne bis in idem[56] under par. 3 of
Art. 20, Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-
vis that of the ICC. As far as relevant, the provision states that no person who has been tried
by another court for conduct x x x [constituting crimes within its jurisdiction] shall be tried by the
[International Criminal] Court with respect to the same conduct x x x.
The foregoing provisions of the Rome Statute, taken collectively, argue against the
idea of jurisdictional conflict between the Philippines, as party to the non-surrender agreement,
and the ICC; or the idea of the Agreement substantially impairing the value of the RPs
undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the Rome
Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute expressly
recognizes the primary jurisdiction of states, like the RP, over serious crimes committed within
their respective borders, the complementary jurisdiction of the ICC coming into play only when
the signatory states are unwilling or unable to prosecute.
Given the above consideration, petitioners suggestionthat the RP, by entering into
the Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention[57] to refrain from performing any act tending to
impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright. For nothing in
the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy
of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the Rome
Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person,
should the process require the requested state to perform an act that would violate some
international agreement it has entered into. We refer to Art. 98(2) of the Rome Statute, which
reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender
which would require the requested State to act inconsistently with its
obligations under international agreements pursuant to which the
consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation of
the sending State for the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a State-
Party and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a
signatory state is only obliged to refrain from acts which would defeat the object and purpose
of a treaty;[58] whereas a State-Party, on the other hand, is legally obliged to follow all the
provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the
Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only
obliged to refrain from acts which would defeat the object and purpose of the Rome Statute.
Any argument obliging the Philippines to follow any provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86,
89 and 90, must fail. These articles are only legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that [i]f the requesting
State is a State not Party to this Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall give priority to the request for
surrender from the Court. x x x In applying the provision, certain undisputed facts should be
pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute;
and second, there is an international agreement between the US and the Philippines regarding
extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of international
agreements entered into between States, even when one of the States is not a State-Party to
the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its
sovereignty by bargaining away the jurisdiction of the ICC to prosecute US nationals,
government officials/employees or military personnel who commit serious crimes of
international concerns in the Philippines. Formulating petitioners argument a bit differently, the
RP, by entering into the Agreement, does thereby abdicate its sovereignty, abdication being
done by its waiving or abandoning its right to seek recourse through the Rome Statute of the
ICC for erring Americans committing international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance and
confirmance of the Philippines national criminal jurisdiction. National criminal jurisdiction being
primary, as explained above, it is always the responsibility and within the prerogative of the RP
either to prosecute criminal offenses equally covered by the Rome Statute or to accede to the
jurisdiction of the ICC. Thus, the Philippines may decide to try persons of the US, as the term
is understood in the Agreement, under our national criminal justice system. Or it may opt not to
exercise its criminal jurisdiction over its erring citizens or over US persons committing high
crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them. As
to persons of the US whom the Philippines refuses to prosecute, the country would, in effect,
accord discretion to the US to exercise either its national criminal jurisdiction over the person
94
concerned or to give its consent to the referral of the matter to the ICC for trial. In the same
breath, the US must extend the same privilege to the Philippines with respect to persons of the
RP committing high crimes within US territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to
the Philippines agreeing to undertake the things set forth in the Agreement. Surely, one State
can agree to waive jurisdictionto the extent agreed uponto subjects of another State due to the
recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas v.
Romulo[59]a case involving the implementation of the criminal jurisdiction provisions of the RP-
US Visiting Forces Agreementis apropos:
Nothing in the Constitution prohibits such agreements recognizing
immunity from jurisdiction or some aspects of jurisdiction (such as custody),
in relation to long-recognized subjects of such immunity like Heads of State,
diplomats and members of the armed forces contingents of a foreign State
allowed to enter another States territory. x x x
To be sure, the nullity of the subject non-surrender agreement cannot be predicated
on the postulate that some of its provisions constitute a virtual abdication of its
sovereignty. Almost every time a state enters into an international agreement, it voluntarily
sheds off part of its sovereignty. The Constitution, as drafted, did not envision a
reclusive Philippines isolated from the rest of the world. It even adheres, as earlier stated, to
the policy of cooperation and amity with all nations.[60]
By their nature, treaties and international agreements actually have a limiting effect
on the otherwise encompassing and absolute nature of sovereignty. By their voluntary act,
nations may decide to surrender or waive some aspects of their state power or agree to limit
the exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived from a pact or a
reciprocal undertaking of one contracting party to grant the same privileges or immunities to
the other. On the rationale that the Philippines has adopted the generally accepted principles
of international law as part of the law of the land, a portion of sovereignty may be waived
without violating the Constitution.[61] Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts. [62]
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing
immoral obligations and/or being at variance with allegedly universally recognized principles of
international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner
would put it, leaves criminals immune from responsibility for unimaginable atrocities that
deeply shock the conscience of humanity; x x x it precludes our country from delivering an
American criminal to the [ICC] x x x.[63]
The above argument is a kind of recycling of petitioners earlier position, which, as
already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its
sovereignty and in the process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.[64]
The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, is an assertion by the Philippinesof its
desire to try and punish crimes under its national law. x x x The agreement is a recognition of
the primacy and competence of the countrys judiciary to try offenses under its national criminal
laws and dispense justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous impression that
the Agreement would allow Filipinos and Americans committing high crimes of international
concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who
may have committed acts penalized under the Rome Statute can be prosecuted and punished
in the Philippines or in the US; or with the consent of the RP or the US, before the ICC,
assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome
Statute have been met. For perspective, what the Agreement contextually prohibits is the
surrender by either party of individuals to international tribunals, like the ICC, without the
consent of the other party, which may desire to prosecute the crime under its existing
laws. With the view we take of things, there is nothing immoral or violative of international law
concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-
surrender agreement over an offense considered criminal by both Philippine laws and the
Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates concurrence in
the Agreement. And without specifically saying so, petitioner would argue that the non-
surrender agreement was executed by the President, thru the DFA Secretary, in grave abuse
of discretion.
The Court need not delve on and belabor the first portion of the above posture of
petitioner, the same having been discussed at length earlier on. As to the second portion, We
wish to state that petitioner virtually faults the President for performing, through respondents, a
task conferred the President by the Constitutionthe power to enter into international
agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of
state and government, is the sole organ and authority in the external affairs of the
country.[65] The Constitution vests in the President the power to enter into international
agreements, subject, in appropriate cases, to the required concurrence votes of the
Senate.But as earlier indicated, executive agreements may be validly entered into without such
concurrence. As the President wields vast powers and influence, her conduct in the external
affairs of the nation is, as Bayan would put it, executive altogether. The right of the President to
enter into or ratify binding executive agreements has been confirmed by long practice. [66]
95

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President
Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the
scope of the authority and discretion vested in her by the Constitution. At the end of the day,
the Presidentby ratifying, thru her deputies, the non-surrender agreementdid nothing more
than discharge a constitutional duty and exercise a prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of the other
issues raised herein, it may perhaps be pertinent to remind all and sundry that about the time
this petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office
of the Executive Secretary.[67] As the Court emphasized in said case, the power to ratify a
treaty, the Statute in that instance, rests with the President, subject to the concurrence of the
Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or
withholding the ratification. And concomitant with this treaty-making power of the President is
his or her prerogative to refuse to submit a treaty to the Senate; or having secured the latters
consent to the ratification of the treaty, refuse to ratify it. [68] This prerogative, the Court
hastened to add, is the Presidents alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to
the Rome Statute. Under Art. 125[69] thereof, the final acts required to complete the treaty
process and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be
done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA)
9851, otherwise known as the Philippine Act on Crimes Against International Humanitarian
Law, Genocide, and Other Crimes Against Humanity. Sec. 17 of RA 9851, particularly the
second paragraph thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine
authorities may dispense with the investigation or prosecution of a crime
punishable under this Act if another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such
crime. Instead, the authorities may surrender or extradite suspected or
accused persons in the Philippines to the appropriate international
court, if any, or to another State pursuant to the applicable extradition
laws and treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends existing municipal laws on the States
obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes against
humanity and war crimes. Relying on the above-quoted statutory proviso, the view posits that
the Philippine is required to surrender to the proper international tribunal those persons
accused of the grave crimes defined under RA 9851, if it does not exercise its primary
jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a
foreign national for violations of RA 9851, the Philippines has only two options, to wit: (1)
surrender the accused to the proper international tribunal; or (2) surrender the accused to
another State if such surrender is pursuant to the applicable extradition laws and treaties. But
the Philippines may exercise these options only in cases where another court or international
tribunal is already conducting the investigation or undertaking the prosecution of such crime;
otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA
9851.
Posing the situation of a US national under prosecution by an international tribunal for
any crime under RA 9851, the Philippines has the option to surrender such USnational to the
international tribunal if it decides not to prosecute such US national here. The view asserts that
this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US,
and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before
the Philippines can exercise such option, requires an amendatory law. In line with this
scenario, the view strongly argues that the Agreement prevents the Philippineswithout the
consent of the USfrom surrendering to any international tribunal US nationals accused of
crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently,
the view is strongly impressed that the Agreement cannot be embodied in a simple executive
agreement in the form of an exchange of notes but must be implemented through an
extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution,
where the Philippines adopts, as a national policy, the generally accepted principles of
international law as part of the law of the land, the Court is further impressed to
perceive the Rome Statute as declaratory of customary international law. In other words, the
Statute embodies principles of law which constitute customary international law or custom and
for which reason it assumes the status of an enforceable domestic law in the context of the
aforecited constitutional provision. As a corollary, it is argued that any derogation from the
Rome Statute principles cannot be undertaken via a mere executive agreement, which, as an
exclusive act of the executive branch, can only implement, but cannot amend or repeal, an
existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the
principles of law or alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence
of the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a
municipal law that can amend or supersede another law, in this instance Sec. 17 of RA 9851
and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2,
Art. II of the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to RA 9851. For another, the view does not
clearly state what precise principles of law, if any, the Agreement alters. And for a third, it does
96
not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of the
principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome
Statute as the former merely reinforces the primacy of the national jurisdiction of the US and
the Philippines in prosecuting criminal offenses committed by their respective citizens
and military personnel, among others. The jurisdiction of the ICC pursuant to the Rome Statute
over high crimes indicated thereat is clearly and unmistakably complementary to the national
criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against
international humanitarian law, genocide and other crimes against humanity;[70] (2) provides
penal sanctions and criminal liability for their commission; [71] and (3) establishes special courts
for the prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.[72] Nowhere in RA 9851 is there a proviso that goes against the tenor of
the Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851
as requiring the Philippine State to surrender to the proper international tribunal those
persons accused of crimes sanctioned under said law if it does not exercise its primary
jurisdiction to prosecute such persons. This view is not entirely correct, for the above quoted
proviso clearly provides discretion to the Philippine State on whether to surrender or not a
person accused of the crimes under RA 9851. The statutory proviso uses the word may. It is
settled doctrine in statutory construction that the word may denotes discretion, and cannot be
construed as having mandatory effect.[73] Thus, the pertinent second pararagraph of Sec. 17,
RA 9851 is simply permissive on the part of the Philippine State.
Besides, even granting that the surrender of a person is mandatorily required when
the Philippines does not exercise its primary jurisdiction in cases where another court or
international tribunal is already conducting the investigation or undertaking the prosecution of
such crime, still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal
proviso aptly provides that the surrender may be made to another State pursuant to the
applicable extradition laws and treaties. The Agreement can already be considered a treaty
following this Courts decision in Nicolas v. Romulo[74] which cited Weinberger v.
Rossi.[75] In Nicolas, We held that an executive agreement is a treaty within the meaning of that
word in international law and constitutes enforceable domestic law vis--vis the United
States.[76]
Likewise, the Philippines and the US already have an existing extradition treaty, i.e.,
RP-US Extradition Treaty, which was executed on November 13, 1994. The pertinent
Philippine law, on the other hand, is Presidential Decree No. 1069, issued on January 13,
1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would neither
violate nor run counter to Sec. 17 of RA 9851.
The views reliance on Suplico v. Neda[77] is similarly improper. In that case, several
petitions were filed questioning the power of the President to enter into foreign loan
agreements. However, before the petitions could be resolved by the Court, the Office of the
Solicitor General filed a Manifestation and Motion averring that the Philippine Government
decided not to continue with the ZTE National Broadband Network Project, thus rendering the
petition moot. In resolving the case, the Court took judicial notice of the act of the executive
department of the Philippines (the President) and found the petition to be indeed moot.
Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the legal
implications of an executive agreement. He stated that an executive agreement has the force
and effect of law x x x [it] cannot amend or repeal prior laws.[78] Hence, this argument finds no
application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this
argument cannot be found in the ratio decidendi of the case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA
9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n offense shall
be an extraditable offense if it is punishable under the laws in both Contracting Parties x x
x,[79] and thereby concluding that while the Philippines has criminalized under RA 9851 the
acts defined in the Rome Statute as war crimes, genocide and other crimes against humanity,
there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in
the US, a person cannot be tried in the federal courts for an international crime unless
Congress adopts a law defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes
mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing war
crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated
(USCA) provides for the criminal offense of war crimes which is similar to the war crimes found
in both the Rome Statute and RA 9851, thus:
97
(a) Offense Whoever, whether inside or outside the United States,
commits a war crime, in any of the circumstances described in
subsection (b), shall be fined under this title or imprisoned for life or any
term of years, or both, and if death results to the victim, shall also be
subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are that
the person committing such war crime or the victim of such war crime is
a member of the Armed Forces of the United States or a national of the
United States (as defined in Section 101 of the Immigration and
Nationality Act).
(c) Definition As used in this Section the term war crime means any
conduct
(1) Defined as a grave breach in any of the international conventions
signed at Geneva 12 August 1949, or any protocol to such
convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the
Hague Convention IV, Respecting the Laws and Customs of War
on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined
in subsection [d]) when committed in the context of and in
association with an armed conflict not of an international character;
or
(4) Of a person who, in relation to an armed conflict and contrary to the
provisions of the Protocol on Prohibitions or Restrictions on the Use
of Mines, Booby-Traps and Other Devices as amended at Geneva
on 3 May 1996 (Protocol II as amended on 3 May 1996), when the
United States is a party to such Protocol, willfully kills or causes
serious injury to civilians.[80]
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:
1091. Genocide
(a) Basic Offense Whoever, whether in the time of peace
or in time of war and with specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties
of members of the group through drugs, torture, or similar
techniques;
(4) subjects the group to conditions of life that are intended to
cause the physical destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the
group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b). [81]
Arguing further, another view has been advanced that the current US laws do not
cover every crime listed within the jurisdiction of the ICC and that there is a gap between the
definitions of the different crimes under the US laws versus the Rome Statute. The view used a
report written by Victoria K. Holt and Elisabeth W. Dallas, entitled On Trial: The US Military and
the International Criminal Court, as its basis.
At the outset, it should be pointed out that the report used may not have any weight or value
under international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists
the sources of international law, as follows: (1) international conventions, whether general or
particular, establishing rules expressly recognized by the contesting states; (2) international
custom, as evidence of a general practice accepted as law; (3) the general principles of law
recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law. The report does not fall under any of
the foregoing enumerated sources. It cannot even be considered as the teachings of highly
qualified publicists. A highly qualified publicist is a scholar of public international law and the
term usually refers to legal scholars or academic writers. [82] It has not been shown that the
authors[83] of this report are highly qualified publicists.
Assuming arguendo that the report has weight, still, the perceived gaps in the
definitions of the crimes are nonexistent. To highlight, the table below shows the definitions of
genocide and war crimes under the Rome Statute vis--vis the definitions under US laws:
Rome Statute US Law
98
 Article 6
Genocide
For the purpose of this Statute, genocide
means any of the following acts committed
with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group,
as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to
members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in whole or
in part;
(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the group
to another group.
Article 8
War Crimes
2. For the purpose of this Statute, war crimes
means:
(a) Grave breaches of the Geneva
Conventions of 12 August 1949, namely, any
of the following acts against persons or
property protected under the provisions of
the relevant Geneva Convention: x x x[84]
(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework of
1091. Genocide
(a) Basic Offense Whoever, whether in the
time of peace or in time of war and with
specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or
religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of
that group;
(3) causes the permanent impairment of the
mental faculties of members of the
group through drugs, torture, or similar
techniques;
(4) subjects the group to conditions of life that
are intended to cause the physical
destruction of the group in whole or in
part;
(5) imposes measures intended to prevent
births within the group; or
(6) transfers by force children of the group to
another group;
shall be punished as provided in subsection
(b).
(a) Definition As used in this Section the
term war crime means any conduct
(1) Defined as a grave breach in any of
the international conventions signed
at Geneva12 August 1949, or any
protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of
the Annex to the Hague Convention
IV, Respecting the Laws and Customs
of War on Land, signed 18 October
1907;
international law, namely, any of the (3) Which constitutes a grave breach of
following acts: common Article 3 (as defined in
subsection [d][85]) when committed in
xxxx the context of and in association with
an armed conflict not of an
(c) In the case of an armed conflict not of an
international character; or
international character, serious violations of
article 3 common to the four Geneva (4) Of a person who, in relation to an
Conventions of 12 August 1949, namely, any armed conflict and contrary to the
of the following acts committed against provisions of the Protocol on
persons taking no active part in the Prohibitions or Restrictions on the Use
hostilities, including members of armed of Mines, Booby-Traps and Other
forces who have laid down their arms and Devices as amended at Geneva on 3
those placed hors de combat by sickness, May 1996 (Protocol II as amended on
wounds, detention or any other cause: 3 May 1996), when the United States
is a party to such Protocol, willfully kills
xxxx
or causes serious injury to civilians.[86]
(d) Paragraph 2 (c) applies to armed conflicts
not of an international character and thus
does not apply to situations of internal
disturbances and tensions, such as riots,
isolated and sporadic acts of violence or
other acts of a similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not of
an international character, within the
established framework of international law,
namely, any of the following acts: x x x.
Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the
report itself stated as much, to wit:
Few believed there were wide differences between the crimes
under the jurisdiction of the Court and crimes within the Uniform Code of
Military Justice that would expose US personnel to the Court.
Since US military lawyers were instrumental in drafting the elements of
crimes outlined in the Rome Statute, they ensured that most of the crimes
were consistent with those outlined in the UCMJ and gave strength to
complementarity for the US. Small areas of potential gaps between the
UCMJ and the Rome Statute, military experts argued, could be addressed
through existing military laws.[87] x x x
99
 The report went on further to say that [a]ccording to those involved, the elements of
crimes laid out in the Rome Statute have been part of US military doctrine for
decades.[88] Thus, the argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation, the US notably follows
the doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete
Habana[89] case already held international law as part of the law of the US, to wit:
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often as
questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the
customs and usages of civilized nations, and, as evidence of these, to the
works of jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the
subjects of which they treat. Such works are resorted to by judicial tribunals,
not for the speculations of their authors concerning what the law ought to be,
but for the trustworthy evidence of what the law really is. [90] (Emphasis
supplied.)
Thus, a person can be tried in the US for an international crime despite the lack of
domestic legislation. The cited ruling in U.S. v. Coolidge,[91] which in turn is based on the
holding in U.S. v. Hudson,[92] only applies to common law and not to the law of nations or
international law.[93] Indeed, the Court in U.S. v. Hudson only considered the question, whether
the Circuit Courts of the United States can exercise a common law jurisdiction in criminal
cases.[94] Stated otherwise, there is no common law crime in the US but this is considerably
different from international law.
The US doubtless recognizes international law as part of the law of the land,
necessarily including international crimes, even without any local statute.[95] In fact, years later,
US courts would apply international law as a source of criminal liability despite the lack of a
local statute criminalizing it as such. So it was that in Ex Parte Quirin[96] the US Supreme Court
noted that [f]rom the very beginning of its history this Court has recognized and applied the law
of war as including that part of the law of nations which prescribes, for the conduct of war, the
status, rights and duties of enemy nations as well as of enemy individuals. [97] It went on further
to explain that Congress had not undertaken the task of codifying the specific offenses covered
in the law of war, thus:
It is no objection that Congress in providing for the trial of such
offenses has not itself undertaken to codify that branch of international
law or to mark its precise boundaries, or to enumerate or define by
statute all the acts which that law condemns. An Act of Congress
punishing the crime of piracy as defined by the law of nations is an
appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, to define
and punish the offense since it has adopted by reference the sufficiently
precise definition of international law. x x x Similarly by the reference in the
15th Article of War to offenders or offenses that x x x by the law of war may
be triable by such military commissions. Congress has incorporated by
reference, as within the jurisdiction of military commissions, all offenses
which are defined as such by the law of war x x x, and which may
constitutionally be included within that jurisdiction. [98] x x x (Emphasis
supplied.)
This rule finds an even stronger hold in the case of crimes against humanity. It has
been held that genocide, war crimes and crimes against humanity have attained the status of
customary international law. Some even go so far as to state that these crimes have attained
the status of jus cogens.[99]
Customary international law or international custom is a source of international law as
stated in the Statute of the ICJ.[100] It is defined as the general and consistent practice of states
recognized and followed by them from a sense of legal obligation. [101] In order to establish the
customary status of a particular norm, two elements must concur: State practice, the objective
element; and opinio juris sive necessitates, the subjective element.[102]
State practice refers to the continuous repetition of the same or similar kind of acts or
norms by States.[103] It is demonstrated upon the existence of the following elements: (1)
generality; (2) uniformity and consistency; and (3) duration. [104] While, opinio juris, the
psychological element, requires that the state practice or norm be carried out in such a way, as
to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of
law requiring it.[105]
The term jus cogens means the compelling law.[106] Corollary, a jus cogens norm
holds the highest hierarchical position among all other customary norms and principles. [107] As
a result, jus cogens norms are deemed peremptory and non-derogable.[108] When applied to
international crimes, jus cogens crimes have been deemed so fundamental to the existence of
a just international legal order that states cannot derogate from them, even by agreement. [109]
100

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state
may exercise jurisdiction over an individual who commits certain heinous and widely
condemned offenses, even when no other recognized basis for jurisdiction exists. [110] The
rationale behind this principle is that the crime committed is so egregious that it is considered
to be committed against all members of the international community [111] and thus granting
every State jurisdiction over the crime.[112]
Therefore, even with the current lack of domestic legislation on the part of the US, it still has
both the doctrine of incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal,
found in the Rome Statute is not declaratory of customary international law.
The first element of customary international law, i.e., established, widespread, and
consistent practice on the part of States,[113] does not, under the premises, appear to be
obtaining as reflected in this simple reality: As of October 12, 2010, only 114[114] States have
ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July
1, 2002. The fact that 114 States out of a total of 194 [115] countries in the world, or roughly
58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles
contained in the Statute have attained the status of customary law and should be deemed as
obligatory international law. The numbers even tend to argue against the urgency of
establishing international criminal courts envisioned in the Rome Statute. Lest it be overlooked,
the Philippines, judging by the action or inaction of its top officials, does not even feel bound by
the Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the
Philippine representative signed the Statute, but the treaty has not been transmitted to the
Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the
concurring elements, thus:
Custom or customary international law means a general and
consistent practice of states followed by them from a sense of legal
obligation [opinio juris] x x x. This statement contains the two basic elements
of custom: the material factor, that is how the states behave, and the
psychological factor or subjective factor, that is, why they behave the way
they do.
xxxx
The initial factor for determining the existence of custom is the actual
behavior of states. This includes several elements: duration, consistency,
and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More
important is the consistency and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way they do. Do
states behave the way they do because they consider it obligatory to behave
thus or do they do it only as a matter of courtesy? Opinio juris, or the belief
that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.[116] (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice,
among the different countries in the world that the prosecution of internationally recognized
crimes of genocide, etc. should be handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or
the psychological element must be deemed non-existent, for an inquiry on why states behave
the way they do presupposes, in the first place, that they are actually behaving, as a matter of
settled and consistent practice, in a certain manner. This implicitly requires belief that the
practice in question is rendered obligatory by the existence of a rule of law requiring it.[117] Like
the first element, the second element has likewise not been shown to be present.
101
 Further, the Rome Statute itself rejects the concept of universal jurisdiction over the
crimes enumerated therein as evidenced by it requiring State consent. [118] Even further, Republic of the Philippines
the Rome Statute specifically and unequivocally requires that: This Statute is subject to Supreme Court
ratification, acceptance or approval by signatory States.[119] These clearly negate the Manila
argument that such has already attained customary status.

EN BANC
More importantly, an act of the executive branch with a foreign government must be
afforded great respect. The power to enter into executive agreements has long been
recognized to be lodged with the President. As We held in Neri v. Senate Committee on
Accountability of Public Officers and Investigations, [t]he power to enter into an executive
agreement is in essence an executive power. This authority of the President to enter into CHINA NATIONAL MACHINERY & EQUIPMENT CORP. G.R. No. 185572
executive agreements without the concurrence of the Legislature has traditionally been (GROUP),
recognized in Philippine jurisprudence.[120] The rationale behind this principle is the inviolable
Petitioner,
doctrine of separation of powers among the legislative, executive and judicial branches of the
government. Thus, absent any clear contravention of the law, courts should exercise utmost
caution in declaring any executive agreement invalid. Present:

In light of the above consideration, the position or view that the challenged RP-US versus
Non-Surrender Agreement ought to be in the form of a treaty, to be effective, has to be CORONA, C.J.,
rejected.
CARPIO,

WHEREFORE, the petition for certiorari, mandamus and prohibition is VELASCO, JR.,
hereby DISMISSED for lack of merit. No costs. HON. CESAR D. SANTAMARIA, in his official capacity as
Presiding Judge of Branch 145, Regional Trial Court of LEONARDO-DE CASTRO,
Makati City, HERMINIO HARRY L. ROQUE, JR., JOEL R.
BRION,
BUTUYAN, ROGER R. RAYEL, ROMEL R. BAGARES,
SO ORDERED. CHRISTOPHER FRANCISCO C. BOLASTIG, LEAGUE OF PERALTA,
URBAN POOR FOR ACTION (LUPA), KILUSAN NG
MARALITA SA MEYCAUAYAN (KMM-LUPA CHAPTER), BERSAMIN,
DANILO M. CALDERON, VICENTE C. ALBAN, MERLYN M.
VAAL, LOLITA S. QUINONES, RICARDO D. LANOZO, JR., DEL CASTILLO,
CONCHITA G. GOZO, MA. TERESA D. ZEPEDA, JOSEFINA
A. LANOZO, and SERGIO C. LEGASPI, JR., KALIPUNAN ABAD,
NG DAMAYANG MAHIHIRAP (KADAMAY), EDY CLERIGO, VILLARAMA, JR.,
RAMMIL DINGAL, NELSON B. TERRADO, CARMEN
DEUNIDA, and EDUARDO LEGSON, PEREZ,
Respondents. MENDOZA,

SERENO,

REYES, and

PERLAS-BERNABE, JJ.

102

Promulgated:
February 7, 2012
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary
Restraining Order (TRO) and/or Preliminary Injunction assailing the 30 September 2008
Decision and 5 December 2008 Resolution of the Court of Appeals (CA) in CAG.R. SP No.
103351.[1]
On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group)
(CNMEG), represented by its chairperson, Ren Hongbin, entered into a Memorandum of
Understanding with the North Luzon Railways Corporation (Northrail), represented by its
president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible railway line
from Manila to San Fernando, La Union (the Northrail Project).[2]
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the
Department of Finance of the Philippines (DOF) entered into a Memorandum of Understanding
(Aug 30 MOU), wherein China agreed to extend Preferential Buyers Credit to the Philippine
government to finance the Northrail Project.[3] The Chinese government designated EXIM Bank
as the lender, while the Philippine government named the DOF as the borrower. [4] Under the
Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding USD 400,000,000 in
favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3% per
annum.[5]
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang),
wrote a letter to DOF Secretary Jose Isidro Camacho (Sec. Camacho) informing him of
CNMEGs designation as the Prime Contractor for the Northrail Project.[6]
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the
construction of Section I, Phase I of the North Luzon Railway System from Caloocan to
Malolos on a turnkey basis (the Contract Agreement). [7] The contract price for the Northrail
Project was pegged at USD 421,050,000.[8]
On 26 February 2004, the Philippine government and EXIM Bank entered into a
counterpart financial agreement Buyer Credit Loan Agreement No. BLA 04055 (the Loan
Agreement).[9] In the Loan Agreement, EXIM Bank agreed to extend Preferential Buyers Credit
in the amount of USD 400,000,000 in favor of the Philippine government in order to finance the
construction of Phase I of the Northrail Project.[10]
On 13 February 2006, respondents filed a Complaint for Annulment of Contract and
Injunction with Urgent Motion for Summary Hearing to Determine the Existence of Facts and
Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory and Mandatory
Injunction and/or TRO against CNMEG, the Office of the Executive Secretary, the DOF, the
Department of Budget and Management, the National Economic Development Authority and
Northrail.[11] The case was docketed as Civil Case No. 06-203 before the Regional Trial Court,
National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint,
respondents alleged that the Contract Agreement and the Loan Agreement were void for being
contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known
as the Government Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise
known as the Government Auditing Code; and (d) Executive Order No. 292, otherwise known
as the Administrative Code.[12]
RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing on
the issuance of injunctive reliefs.[13] On 29 March 2006, CNMEG filed an Urgent Motion for
Reconsideration of this Order.[14] Before RTC Br. 145 could rule thereon, CNMEG filed a
Motion to Dismiss dated 12 April 2006, arguing that the trial court did not have jurisdiction over
(a) its person, as it was an agent of the Chinese government, making it immune from suit, and
(b) the subject matter, as the Northrail Project was a product of an executive agreement. [15]
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to
Dismiss and setting the case for summary hearing to determine whether the injunctive reliefs
prayed for should be issued.[16] CNMEG then filed a Motion for Reconsideration,[17] which was
denied by the trial court in an Order dated 10 March 2008. [18] Thus, CNMEG filed before the
CA a Petition for Certiorari with Prayer for the Issuance of TRO and/or Writ of Preliminary
Injunction dated 4 April 2008.[19]
In the assailed Decision dated 30 September 2008, the appellate court dismissed the
Petition for Certiorari.[20] Subsequently, CNMEG filed a Motion for Reconsideration,[21] which
was denied by the CA in a Resolution dated 5 December 2008. [22] Thus, CNMEG filed the
instant Petition for Review on Certiorari dated 21 January 2009, raising the following issues: [23]
103
 Whether or not petitioner CNMEG is an agent of the sovereign
Peoples Republic of China.
Whether or not the Northrail contracts are products of an
executive agreement between two sovereign states.
Whether or not the certification from the Department of Foreign
Affairs is necessary under the foregoing circumstances.
Whether or not the act being undertaken by petitioner CNMEG
is an act jure imperii.
Whether or not the Court of Appeals failed to avoid a procedural
limbo in the lower court.
Whether or not the Northrail Project is subject to competitive
public bidding.
Whether or not the Court of Appeals ignored the ruling of this
Honorable Court in the Neri case.
CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145 for lack of
jurisdiction. It likewise requests this Court for the issuance of a TRO and, later on, a writ of
preliminary injunction to restrain public respondent from proceeding with the disposition of Civil
Case No. 06-203.
The crux of this case boils down to two main issues, namely:
1. Whether CNMEG is entitled to immunity, precluding it from being sued
before a local court.
2. Whether the Contract Agreement is an executive agreement, such that it
cannot be questioned by or before a local court.
First issue: Whether CNMEG is
entitled to immunity
This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,[24] to
wit:
There are two conflicting concepts of sovereign immunity, each
widely held and firmly established. According to the classical or absolute
theory, a sovereign cannot, without its consent, be made a respondent
in the courts of another sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with regard to private
acts or acts jure gestionis. (Emphasis supplied; citations omitted.)
xxx xxx xxx
The restrictive theory came about because of the entry of sovereign
states into purely commercial activities remotely connected with the
discharge of governmental functions. This is particularly true with respect to
the Communist states which took control of nationalized business activities
and international trading.
In JUSMAG v. National Labor Relations Commission,[25] this Court affirmed the
Philippines adherence to the restrictive theory as follows:
The doctrine of state immunity from suit has undergone further
metamorphosis. The view evolved that the existence of a contract does
not, per se, mean that sovereign states may, at all times, be sued in local
courts. The complexity of relationships between sovereign states, brought
about by their increasing commercial activities, mothered a
more restrictive application of the doctrine.
xxx xxx xxx
As it stands now, the application of the doctrine of immunity from
suit has been restricted to sovereign or governmental activities (jure
imperii). The mantle of state immunity cannot be extended to commercial,
private and proprietary acts (jure gestionis).[26] (Emphasis supplied.)
104
 Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal
nature of the act involved whether the entity claiming immunity performs governmental, as
opposed to proprietary, functions. As held in United States of America v. Ruiz [27]
The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. Stated differently, a State may
be said to have descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when it enters into
business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions.[28]
A. CNMEG is engaged in a
proprietary activity.
A threshold question that must be answered is whether CNMEG performs governmental
or proprietary functions. A thorough examination of the basic facts of the case would show that
CNMEG is engaged in a proprietary activity.
The parties executed the Contract Agreement for the purpose of constructing the Luzon
Railways, viz:[29]
WHEREAS the Employer (Northrail) desired to construct the
railways form Caloocan to Malolos, section I, Phase I of Philippine North
Luzon Railways Project (hereinafter referred to as THE PROJECT);
AND WHEREAS the Contractor has offered to provide the Project on
Turnkey basis, including design, manufacturing, supply, construction,
commissioning, and training of the Employers personnel;
AND WHEREAS the Loan Agreement of the Preferential Buyers
Credit between Export-Import Bank of China and Department of Finance of
Republic of the Philippines;
NOW, THEREFORE, the parties agree to sign this Contract for the
Implementation of the Project.
The above-cited portion of the Contract Agreement, however, does not on its own
reveal whether the construction of the Luzon railways was meant to be a proprietary endeavor.
In order to fully understand the intention behind and the purpose of the entire undertaking, the
Contract Agreement must not be read in isolation. Instead, it must be construed in conjunction
with three other documents executed in relation to the Northrail Project, namely: (a) the
Memorandum of Understanding dated 14 September 2002 between Northrail and
CNMEG;[30] (b) the letter of Amb. Wang dated 1 October 2003 addressed to Sec.
Camacho;[31] and (c) the Loan Agreement.[32]
1. Memorandum of Understanding
dated 14 September 2002
The Memorandum of Understanding dated 14 September 2002 shows that CNMEG
sought the construction of the Luzon Railways as a proprietary venture. The relevant parts
thereof read:
WHEREAS, CNMEG has the financial capability, professional
competence and technical expertise to assess the state of the [Main Line
North (MLN)] and recommend implementation plans as well as undertake
its rehabilitation and/or modernization;
WHEREAS, CNMEG has expressed interest in the
rehabilitation and/or modernization of the MLN from Metro Manila to
San Fernando, La Union passing through the provinces of Bulacan,
Pampanga, Tarlac, Pangasinan and La Union (the Project);
WHEREAS, the NORTHRAIL CORP. welcomes CNMEGs
proposal to undertake a Feasibility Study (the Study) at no cost to
NORTHRAIL CORP.;
WHEREAS, the NORTHRAIL CORP. also welcomes
CNMEGs interest in undertaking the Project with Suppliers Credit
and intends to employ CNMEG as the Contractor for the Project
subject to compliance with Philippine and Chinese laws, rules and
regulations for the selection of a contractor;
105

WHEREAS, the NORTHRAIL CORP. considers CNMEGs
proposal advantageous to the Government of the Republic of
the Philippines and has therefore agreed to assist CNMEG in the
conduct of the aforesaid Study;
xxx xxx xxx
II. APPROVAL PROCESS
2.1 As soon as possible after completion and presentation of the
Study in accordance with Paragraphs 1.3 and 1.4 above and in
compliance with necessary governmental laws, rules,
regulations and procedures required from both parties, the
parties shall commence the preparation and negotiation of the
terms and conditions of the Contract (the Contract) to be
entered into between them on the implementation of the
Project. The parties shall use their best endeavors to
formulate and finalize a Contract with a view to signing the
Contract within one hundred twenty (120) days from
CNMEGs presentation of the Study.[33] (Emphasis supplied)
Clearly, it was CNMEG that initiated the undertaking, and not the Chinese
government. The Feasibility Study was conducted not because of any diplomatic gratuity from
or exercise of sovereign functions by the Chinese government, but was plainly a business
strategy employed by CNMEG with a view to securing this commercial enterprise.
2. Letter dated 1 October 2003
That CNMEG, and not the Chinese government, initiated the Northrail Project was
confirmed by Amb. Wang in his letter dated 1 October 2003, thus:
1. CNMEG has the proven competence and
capability to undertake the Project as evidenced by the ranking of 42
given by the ENR among 225 global construction companies.
2. CNMEG already signed an MOU with the North
Luzon Railways Corporation last September 14, 2000 during the visit of
Chairman Li Peng. Such being the case, they have already established
an initial working relationship with your North Luzon Railways
Corporation. This would categorize CNMEG as the state corporation
within the Peoples Republic of China which initiated our
Governments involvement in the Project.
3. Among the various state corporations of the
Peoples Republic of China, only CNMEG has the advantage of being
fully familiar with the current requirements of the Northrail Project having
already accomplished a Feasibility Study which was used as inputs by
the North Luzon Railways Corporation in the approvals (sic) process
required by the Republic of the Philippines.[34] (Emphasis supplied.)
Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary or
regular course of its business as a global construction company. The implementation of the
Northrail Project was intended to generate profit for CNMEG, with the Contract Agreement
placing a contract price of USD 421,050,000 for the venture.[35] The use of the term state
corporation to refer to CNMEG was only descriptive of its nature as a government-owned
and/or -controlled corporation, and its assignment as the Primary Contractor did not imply that
it was acting on behalf of China in the performance of the latters sovereign functions. To imply
otherwise would result in an absurd situation, in which all Chinese corporations owned by the
state would be automatically considered as performing governmental activities, even if they are
clearly engaged in commercial or proprietary pursuits.
3. The Loan Agreement
CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the
Northrail Project was signed by the Philippine and Chinese governments, and its assignment as
the Primary Contractor meant that it was bound to perform a governmental function on behalf
of China. However, the Loan Agreement, which originated from the same Aug 30 MOU, belies
this reasoning, viz:
Article 11. xxx (j) Commercial Activity The execution and delivery of
this Agreement by the Borrower constitute, and the Borrowers performance of
and compliance with its obligations under this Agreement will
constitute, private and commercial acts done and performed for
commercial purposes under the laws of the Republic of the Philippines
and neither the Borrower nor any of its assets is entitled to any immunity
106
or privilege (sovereign or otherwise) from suit, execution or any other
legal process with respect to its obligations under this Agreement, as
the case may be, in any jurisdiction. Notwithstanding the foregoing, the
Borrower does not waive any immunity with respect of its assets which are (i)
used by a diplomatic or consular mission of the Borrower and (ii) assets of a
military character and under control of a military authority or defense agency
and (iii) located in the Philippines and dedicated to public or governmental use
(as distinguished from patrimonial assets or assets dedicated to commercial
use). (Emphasis supplied.)
(k) Proceedings to Enforce Agreement In any proceeding in the
Republic of the Philippines to enforce this Agreement, the choice of the laws of
the Peoples Republic of China as the governing law hereof will be recognized
and such law will be applied. The waiver of immunity by the Borrower, the
irrevocable submissions of the Borrower to the non-exclusive jurisdiction of the
courts of the Peoples Republic of China and the appointment of the Borrowers
Chinese Process Agent is legal, valid, binding and enforceable and any
judgment obtained in the Peoples Republic of China will be if introduced,
evidence for enforcement in any proceedings against the Borrower and its
assets in the Republic of the Philippines provided that (a) the court rendering
judgment had jurisdiction over the subject matter of the action in accordance
with its jurisdictional rules, (b) the Republic had notice of the proceedings, (c)
the judgment of the court was not obtained through collusion or fraud, and (d)
such judgment was not based on a clear mistake of fact or law.[36]
Further, the Loan Agreement likewise contains this express waiver of immunity:
15.5 Waiver of Immunity The Borrower irrevocably and
unconditionally waives, any immunity to which it or its property may at any time
be or become entitled, whether characterized as sovereign immunity or
otherwise, from any suit, judgment, service of process upon it or any agent,
execution on judgment, set-off, attachment prior to judgment, attachment in aid
of execution to which it or its assets may be entitled in any legal action or
proceedings with respect to this Agreement or any of the transactions
contemplated hereby or hereunder. Notwithstanding the foregoing, the
Borrower does not waive any immunity in respect of its assets which are (i)
used by a diplomatic or consular mission of the Borrower, (ii) assets of a
military character and under control of a military authority or defense agency
and (iii) located in the Philippines and dedicated to a public or governmental
use (as distinguished from patrimonial assets or assets dedicated to
commercial use).[37]
Thus, despite petitioners claim that the EXIM Bank extended financial assistance to
Northrail because the bank was mandated by the Chinese government, and not because of any
motivation to do business in the Philippines,[38] it is clear from the foregoing provisions that the
Northrail Project was a purely commercial transaction.
Admittedly, the Loan Agreement was entered into between EXIM Bank and the
Philippine government, while the Contract Agreement was between Northrail and CNMEG.
Although the Contract Agreement is silent on the classification of the legal nature of the
transaction, the foregoing provisions of the Loan Agreement, which is an inextricable part of the
entire undertaking, nonetheless reveal the intention of the parties to the Northrail Project to
classify the whole venture as commercial or proprietary in character.
Thus, piecing together the content and tenor of the Contract Agreement, the
Memorandum of Understanding dated 14 September 2002, Amb. Wangs letter dated 1
October 2003, and the Loan Agreement would reveal the desire of CNMEG to construct the
Luzon Railways in pursuit of a purely commercial activity performed in the ordinary course of
its business.
B. CNMEG failed to
adduce evidence that it is immune
from suit under Chinese law.
Even assuming arguendo that CNMEG performs governmental functions, such claim
does not automatically vest it with immunity. This view finds support in Malong v. Philippine
National Railways, in which this Court held that (i)mmunity from suit is determined by the
character of the objects for which the entity was organized.[39]
In this regard, this Courts ruling in Deutsche Gesellschaft Fr Technische
Zusammenarbeit (GTZ) v. CA[40] must be examined. In Deutsche Gesellschaft, Germany and
the Philippines entered into a Technical Cooperation Agreement, pursuant to which both signed
an arrangement promoting the Social Health InsuranceNetworking and Empowerment (SHINE)
project. The two governments named their respective implementing organizations: the
Department of Health (DOH) and the Philippine Health Insurance Corporation (PHIC) for
the Philippines, and GTZ for the implementation of Germanys contributions. In ruling that GTZ
was not immune from suit, this Court held:
The arguments raised by GTZ and the [Office of the Solicitor
General (OSG)] are rooted in several indisputable facts. The SHINE project
was implemented pursuant to the bilateral agreements between the
Philippine and German governments. GTZ was tasked, under the 1991
agreement, with the implementation of the contributions of the German
government. The activities performed by GTZ pertaining to the SHINE
project are governmental in nature, related as they are to the promotion of
107
health insurance in the Philippines. The fact that GTZ entered into
employment contracts with the private respondents did not disqualify it from
invoking immunity from suit, as held in cases such as Holy See v. Rosario,
Jr., which set forth what remains valid doctrine:
Certainly, the mere entering into a contract by a
foreign state with a private party cannot be the ultimate
test. Such an act can only be the start of the inquiry. The
logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the foreign
state is not engaged regularly in a business or trade, the
particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an
incident thereof, then it is an act jure imperii, especially
when it is not undertaken for gain or profit.
Beyond dispute is the tenability of the comment points (sic) raised by
GTZ and the OSG that GTZ was not performing proprietary
functions notwithstanding its entry into the particular employment contracts.
Yet there is an equally fundamental premise which GTZ and the OSG fail to
address, namely: Is GTZ, by conception, able to enjoy the Federal Republics
immunity from suit?
The principle of state immunity from suit, whether a local state or a
foreign state, is reflected in Section 9, Article XVI of the Constitution, which
states that the State may not be sued without its consent. Who or what
consists of the State? For one, the doctrine is available to foreign States
insofar as they are sought to be sued in the courts of the local
State, necessary as it is to avoid unduly vexing the peace of nations.
If the instant suit had been brought directly against the Federal
Republic of Germany, there would be no doubt that it is a suit brought
against a State, and the only necessary inquiry is whether said State had
consented to be sued. However, the present suit was brought against GTZ.
It is necessary for us to understand what precisely are the parameters of the
legal personality of GTZ.
Counsel for GTZ characterizes GTZ as the implementing
agency of the Government of the Federal Republic of Germany, a
depiction similarly adopted by the OSG. Assuming that the characterization
is correct, it does not automatically invest GTZ with the ability to invoke
State immunity from suit. The distinction lies in whether the agency is
incorporated or unincorporated.
xxx xxx xxx
State immunity from suit may be waived by general or special law.
The special law can take the form of the original charter of the incorporated
government agency. Jurisprudence is replete with examples of incorporated
government agencies which were ruled not entitled to invoke immunity from
suit, owing to provisions in their charters manifesting their consent to be
sued.
xxx xxx xxx
It is useful to note that on the part of the Philippine government, it had
designated two entities, the Department of Health and the Philippine Health
Insurance Corporation (PHIC), as the implementing agencies in behalf of the
Philippines. The PHIC was established under Republic Act No. 7875, Section 16
(g) of which grants the corporation the power to sue and be sued in court.
Applying the previously cited jurisprudence, PHIC would not enjoy immunity from
suit even in the performance of its functions connected with SHINE, however,
(sic) governmental in nature as (sic) they may be.
Is GTZ an incorporated agency of the German government?
There is some mystery surrounding that question. Neither GTZ nor
the OSG go beyond the claim that petitioner is the implementing
agency of the Government of the Federal Republic of Germany. On the
other hand, private respondents asserted before the Labor Arbiter that GTZ
was a private corporation engaged in the implementation of development
projects. The Labor Arbiter accepted that claim in his Order denying the
Motion to Dismiss, though he was silent on that point in his Decision.
Nevertheless, private respondents argue in their Comment that the finding
that GTZ was a private corporation was never controverted, and is
therefore deemed admitted. In its Reply, GTZ controverts that finding,
saying that it is a matter of public knowledge that the status of petitioner
GTZ is that of the implementing agency, and not that of a private
corporation.
In truth, private respondents were unable to adduce any evidence to
substantiate their claim that GTZ was a private corporation, and the Labor
Arbiter acted rashly in accepting such claim without explanation. But neither
has GTZ supplied any evidence defining its legal nature beyond that of
the bare descriptive implementing agency. There is no doubt that the
1991 Agreement designated GTZ as the implementing agency in behalf
of the German government. Yet the catch is that such term has no
precise definition that is responsive to our concerns. Inherently, an
agent acts in behalf of a principal, and the GTZ can be said to act in
behalf of the German state. But that is as far as implementing agency
108
 could take us. The term by itself does not supply whether GTZ is
incorporated or unincorporated, whether it is owned by the German
state or by private interests, whether it has juridical personality
independent of the German government or none at all.
xxx xxx xxx
Again, we are uncertain of the corresponding legal implications
under German law surrounding a private company owned by the
Federal Republic of Germany. Yet taking the description on face value,
the apparent equivalent under Philippine law is that of a corporation
organized under the Corporation Code but owned by the Philippine
government, or a government-owned or controlled corporation without
original charter. And it bears notice that Section 36 of the Corporate
Code states that [e]very corporation incorporated under this Code has
the power and capacity x x x to sue and be sued in its corporate name.
It is entirely possible that under German law, an entity such as GTZ
or particularly GTZ itself has not been vested or has been specifically
deprived the power and capacity to sue and/or be sued. Yet in the
proceedings below and before this Court, GTZ has failed to establish that
under German law, it has not consented to be sued despite it being
owned by the Federal Republic of Germany. We adhere to the rule that
in the absence of evidence to the contrary, foreign laws on a particular
subject are presumed to be the same as those of the Philippines, and
following the most intelligent assumption we can gather, GTZ is akin to
a governmental owned or controlled corporation without original
charter which, by virtue of the Corporation Code, has expressly
consented to be sued. At the very least, like the Labor Arbiter and the Court
of Appeals, this Court has no basis in fact to conclude or presume that GTZ
enjoys immunity from suit.[41] (Emphasis supplied.)
Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG
cannot claim immunity from suit, even if it contends that it performs governmental functions. Its
designation as the Primary Contractor does not automatically grant it immunity, just as the term
implementing agency has no precise definition for purposes of ascertaining whether GTZ was
immune from suit. Although CNMEG claims to be a government-owned corporation, it failed to
adduce evidence that it has not consented to be sued under Chinese law. Thus, following this
Courts ruling in Deutsche Gesellschaft, in the absence of evidence to the contrary, CNMEG is to
be presumed to be a government-owned and -controlled corporation without an original charter.
As a result, it has the capacity to sue and be sued under Section 36 of the Corporation Code.
C. CNMEG failed to present
a certification from the Department of
Foreign Affairs.
In Holy See,[42] this Court reiterated the oft-cited doctrine that the determination by the
Executive that an entity is entitled to sovereign or diplomatic immunity is a political question
conclusive upon the courts, to wit:
In Public International Law, when a state or international agency
wishes to plead sovereign or diplomatic immunity in a foreign court,
it requests the Foreign Office of the state where it is sued to convey to
the court that said defendant is entitled to immunity.
xxx xxx xxx
In the Philippines, the practice is for the foreign government or
the international organization to first secure an executive endorsement
of its claim of sovereign or diplomatic immunity. But how the Philippine
Foreign Office conveys its endorsement to the courts varies. In International
Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the
Secretary of Foreign Affairs just sent a letter directly to the Secretary of
Labor and Employment, informing the latter that the respondent-employer
could not be sued because it enjoyed diplomatic immunity. In World Health
Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57
SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to
request the Solicitor General to make, in behalf of the Commander of the
United States Naval Base at Olongapo City, Zambales, a suggestion to
respondent Judge. The Solicitor General embodied the suggestion in a
Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the
Office of Legal Affairs moved with this Court to be allowed to intervene on
the side of petitioner. The Court allowed the said Department to file its
memorandum in support of petitioners claim of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted
directly to the local courts by the respondents through their private counsels
(Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-Ryukyus
Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182
SCRA 644 [1990] and companion cases). In cases where the foreign states
bypass the Foreign Office, the courts can inquire into the facts and make
their own determination as to the nature of the acts and transactions
involved.[43] (Emphasis supplied.)
109
 The question now is whether any agency of the Executive Branch can make a determination
of immunity from suit, which may be considered as conclusive upon the courts. This Court,
in Department of Foreign Affairs (DFA) v. National Labor Relations Commission
(NLRC),[44] emphasized the DFAs competence and authority to provide such necessary determination,
to wit:
The DFAs function includes, among its other mandates, the
determination of persons and institutions covered by diplomatic
immunities, a determination which, when challenge, (sic) entitles it to
seek relief from the court so as not to seriously impair the conduct of
the country's foreign relations. The DFA must be allowed to plead its case
whenever necessary or advisable to enable it to help keep the credibility of
the Philippine government before the international community. When
international agreements are concluded, the parties thereto are
deemed to have likewise accepted the responsibility of seeing to it that
their agreements are duly regarded. In our country, this task falls
principally of (sic) the DFA as being the highest executive department
with the competence and authority to so act in this aspect of the
international arena.[45] (Emphasis supplied.)
Further, the fact that this authority is exclusive to the DFA was also emphasized in this
Courts ruling in Deutsche Gesellschaft:
It is to be recalled that the Labor Arbiter, in both of his rulings, noted
that it was imperative for petitioners to secure from the Department of Foreign
Affairs a certification of respondents diplomatic status and entitlement to
diplomatic privileges including immunity from suits. The requirement might
not necessarily be imperative. However, had GTZ obtained such
certification from the DFA, it would have provided factual basis for its
claim of immunity that would, at the very least, establish a disputable
evidentiary presumption that the foreign party is indeed immune which
the opposing party will have to overcome with its own factual evidence.
We do not see why GTZ could not have secured such certification or
endorsement from the DFA for purposes of this case. Certainly, it would
have been highly prudential for GTZ to obtain the same after the Labor
Arbiter had denied the motion to dismiss. Still, even at this juncture, we do
not see any evidence that the DFA, the office of the executive branch in
charge of our diplomatic relations, has indeed endorsed GTZs claim of
immunity. It may be possible that GTZ tried, but failed to secure such
certification, due to the same concerns that we have discussed herein.
Would the fact that the Solicitor General has endorsed GTZs
claim of States immunity from suit before this Court sufficiently
substitute for the DFA certification? Note that the rule in public
international law quoted in Holy See referred to endorsement by the
Foreign Office of the State where the suit is filed, such foreign office
in the Philippines being the Department of Foreign Affairs. Nowhere in
the Comment of the OSG is it manifested that the DFA has endorsed
GTZs claim, or that the OSG had solicited the DFAs views on the
issue. The arguments raised by the OSG are virtually the same as the
arguments raised by GTZ without any indication of any special and distinct
perspective maintained by the Philippine government on the issue. The
Comment filed by the OSG does not inspire the same degree of
confidence as a certification from the DFA would have
elicited.[46] (Emphasis supplied.)
In the case at bar, CNMEG offers the Certification executed by the Economic and
Commercial Office of the Embassy of the Peoples Republic of China, stating that the Northrail
Project is in pursuit of a sovereign activity.[47] Surely, this is not the kind of certification that can
establish CNMEGs entitlement to immunity from suit, as Holy Seeunequivocally refers to the
determination of the Foreign Office of the state where it is sued.
Further, CNMEG also claims that its immunity from suit has the executive endorsement
of both the OSG and the Office of the Government Corporate Counsel (OGCC), which must be
respected by the courts. However, as expressly enunciated in Deutsche Gesellschaft, this
determination by the OSG, or by the OGCC for that matter, does not inspire the same degree of
confidence as a DFA certification. Even with a DFA certification, however, it must be
remembered that this Court is not precluded from making an inquiry into the intrinsic correctness
of such certification.
D. An agreement to submit
any dispute to arbitration may be
construed as an implicit waiver of
immunity from suit.
In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a
waiver by implication of state immunity. In the said law, the agreement to submit disputes to
arbitration in a foreign country is construed as an implicit waiver of immunity from suit. Although
there is no similar law in the Philippines, there is reason to apply the legal reasoning behind the
waiver in this case.
The Conditions of Contract,[48] which is an integral part of the Contract
Agreement,[49] states:
33. SETTLEMENT OF DISPUTES AND ARBITRATION
110
 33.1. Amicable Settlement
Both parties shall attempt to amicably settle all disputes or
controversies arising from this Contract before the commencement of
arbitration.
33.2. Arbitration
All disputes or controversies arising from this Contract which cannot
be settled between the Employer and the Contractor shall be submitted to
arbitration in accordance with the UNCITRAL Arbitration Rules at present in
force and as may be amended by the rest of this Clause. The appointing
authority shall be Hong Kong International Arbitration Center. The place of
arbitration shall be in Hong Kong at Hong Kong International Arbitration Center
(HKIAC).
Under the above provisions, if any dispute arises between Northrail and CNMEG, both
parties are bound to submit the matter to the HKIAC for arbitration. In case the HKIAC makes an
arbitral award in favor of Northrail, its enforcement in the Philippines would be subject to the
Special Rules on Alternative Dispute Resolution (Special Rules). Rule 13 thereof provides for the
Recognition and Enforcement of a Foreign Arbitral Award. Under Rules 13.2 and 13.3 of the
Special Rules, the party to arbitration wishing to have an arbitral award recognized and enforced
in the Philippines must petition the proper regional trial court (a) where the assets to be attached
or levied upon is located; (b) where the acts to be enjoined are being performed; (c) in the
principal place of business in the Philippines of any of the parties; (d) if any of the parties is an
individual, where any of those individuals resides; or (e) in the National Capital Judicial Region.
From all the foregoing, it is clear that CNMEG has agreed that it will not be afforded
immunity from suit. Thus, the courts have the competence and jurisdiction to ascertain the validity
of the Contract Agreement.
Second issue: Whether the Contract
Agreement is an executive agreement
Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention)
defines a treaty as follows:
[A]n international agreement concluded between States in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation.
In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a
treaty, except that the former (a) does not require legislative concurrence; (b) is usually less
formal; and (c) deals with a narrower range of subject matters.[50]
Despite these differences, to be considered an executive agreement, the following three
requisites provided under the Vienna Convention must nevertheless concur: (a) the agreement
must be between states; (b) it must be written; and (c) it must governed by international law. The
first and the third requisites do not obtain in the case at bar.
A. CNMEG is neither a
government nor a government agency.
The Contract Agreement was not concluded between the Philippines and China, but
between Northrail and CNMEG.[51] By the terms of the Contract Agreement, Northrail is a
government-owned or -controlled corporation, while CNMEG is a corporation duly organized and
created under the laws of the Peoples Republic of China.[52] Thus, both Northrail and CNMEG
entered into the Contract Agreement as entities with personalities distinct and separate from the
Philippine and Chinese governments, respectively.
Neither can it be said that CNMEG acted as agent of the Chinese government. As
previously discussed, the fact that Amb. Wang, in his letter dated 1 October 2003,[53]described
CNMEG as a state corporation and declared its designation as the Primary Contractor in the
Northrail Project did not mean it was to perform sovereign functions on behalf of China. That
label was only descriptive of its nature as a state-owned corporation, and did not preclude it
from engaging in purely commercial or proprietary ventures.
B. The Contract Agreement is
to be governed by Philippine law.
Article 2 of the Conditions of Contract,[54] which under Article 1.1 of the Contract
Agreement is an integral part of the latter, states:
111
 APPLICABLE LAW AND GOVERNING LANGUAGE

The contract shall in all respects be read and construed in

accordance with the laws of the Philippines.

The contract shall be written in English language. All correspondence

and other documents pertaining to the Contract which are exchanged by the
parties shall be written in English language.

Since the Contract Agreement explicitly provides that Philippine law shall be applicable,
the parties have effectively conceded that their rights and obligations thereunder are not
governed by international law.

It is therefore clear from the foregoing reasons that the Contract Agreement does not
partake of the nature of an executive agreement. It is merely an ordinary commercial contract
that can be questioned before the local courts.

WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery &
Equipment Corp. (Group) is not entitled to immunity from suit, and the Contract Agreement is not
an executive agreement. CNMEGs prayer for the issuance of a TRO and/or Writ of Preliminary
Injunction is DENIED for being moot and academic. This case is REMANDED to the Regional
Trial Court of Makati, Branch 145, for further proceedings as regards the validity of the contracts
subject of Civil Case No. 06-203.

No pronouncement on costs of suit.

SO ORDERED.

112