[G.R. No. 138680.
October 10, 2000]
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.
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 century between the Republic of the
Philippines and the United States of America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America
forged a Military Bases Agreement which formalized, among others, the use
of installations in the Philippine territory by United States military
personnel. To further strengthen their defense and security relationship, the
Philippines and the United States entered into a Mutual Defense Treaty on
August 30, 1951. Under the treaty, the parties agreed to respond to any
external armed attack on their territory, armed forces, public vessels, and
aircraft.[1]
In view of the impending expiration of the RP-US Military Bases
Agreement in 1991, the Philippines and the United States negotiated for a
possible extension of the military bases agreement. On September 16, 1991,
the Philippine Senate rejected the proposed RP-US Treaty of Friendship,
Cooperation and Security which, in effect, would have extended the
presence of US military bases in the Philippines. [2] With the expiration of the
RP-US Military Bases Agreement, the periodic military exercises conducted
between the two countries were held in abeyance. Notwithstanding, the
defense and security relationship between the Philippines and the United
States of America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense
Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with the
Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino
Jr., to exchange notes on the complementing strategic interests of the United
States and the Philippines in the Asia-Pacific region. Both sides discussed,
among other things, the possible elements of the Visiting Forces
Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a
consolidated draft text, which in turn resulted to a final series of conferences
and negotiations[3] that culminated in Manila on January 12 and 13, 1998.
Thereafter, then President Fidel V. Ramos approved the VFA, which was
respectively signed by public respondent Secretary Siazon and Unites States
Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent
Secretary of Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive
Secretary Ronaldo Zamora, officially transmitted to the Senate of the
Philippines,[5] the Instrument of Ratification, the letter of the President [6] and
the VFA, for concurrence pursuant to Section 21, Article VII of the 1987
Constitution. The Senate, in turn, referred the VFA to its Committee on
Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on
National Defense and Security, chaired by Senator Rodolfo G. Biazon, for
their joint consideration and recommendation. Thereafter, joint public
hearings were held by the two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate
Resolution No. 443[8] recommending the concurrence of the Senate to the
VFA and the creation of a Legislative Oversight Committee to oversee its
implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved
by the Senate, by a two-thirds (2/3) vote [9] of its members. Senate Resolution
No. 443 was then re-numbered as Senate Resolution No. 18. [10]
On June 1, 1999, the VFA officially entered into force after an Exchange
of Notes between respondent Secretary Siazon and United States
Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides
for the mechanism for regulating the circumstances and conditions under
which US Armed Forces and defense personnel may be present in the
Philippines, and is quoted in its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means United
States military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the
United States Army, Navy, Marine Corps, Air Force, and Coast
Guard.
2. The term civilian personnel refers to individuals who are neither
nationals of, nor ordinary residents in the Philippines and who
are employed by the United States armed forces or who are
accompanying the United States armed forces, such as
employees of the American Red Cross and the United Services
Organization.
Article II
Respect for Law
It is the duty of the United States personnel to respect the laws of the
Republic of the Philippines and to abstain from any activity inconsistent
with the spirit of this agreement, and, in particular, from any political
activity in the Philippines. The Government of the United States shall
take all measures within its authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the admission of
United States personnel and their departure from the Philippines in
connection with activities covered by this agreement.
2. United States military personnel shall be exempt from passport and
visa regulations upon entering and departing the Philippines.
3. The following documents only, which shall be presented on demand,
shall be required in respect of United States military personnel who
enter the Philippines:
(a) personal identity card issued by the appropriate United States
authority showing full name, date of birth, rank or grade and
service number (if any), branch of service and photograph;
(b) individual or collective document issued by the appropriate
United States authority, authorizing the travel or visit and
identifying the individual or group as United States military
personnel; and
(c) the commanding officer of a military aircraft or vessel shall
present a declaration of health, and when required by the
cognizant representative of the Government of the Philippines,
shall conduct a quarantine inspection and will certify that the
aircraft or vessel is free from quarantinable diseases. Any
quarantine inspection of United States aircraft or United States
vessels or cargoes thereon shall be conducted by the United
States commanding officer in accordance with the international
health regulations as promulgated by the World Health
Organization, and mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa
requirements but shall present, upon demand, valid passports upon
entry and departure of the Philippines.
5. If the Government of the Philippines has requested the removal of
any United States personnel from its territory, the United States
authorities shall be responsible for receiving the person concerned
within its own territory or otherwise disposing of said person outside
of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a
driving permit or license issued by the appropriate United States
authority to United States personnel for the operation of military or
official vehicles.
2. Vehicles owned by the Government of the United States need not be
registered, but shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United
States personnel with respect to offenses committed within
the Philippines and punishable under the law of the
Philippines.
(b) United States military authorities shall have the right to
exercise within the Philippines all criminal and disciplinary
jurisdiction conferred on them by the military law of the
United States over United States personnel in the
Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over
United States personnel with respect to offenses,
including offenses relating to the security of the
Philippines, punishable under the laws of the
Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction
over United States personnel with respect to offenses,
including offenses relating to the security of the United
States, punishable under the laws of the United States,
but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of
this article, an offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to
national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the
following rules shall apply:
(a) Philippine authorities shall have the primary right to exercise
jurisdiction over all offenses committed by United States
personnel, except in cases provided for in paragraphs 1(b), 2
(b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right
to exercise jurisdiction over United States personnel subject
to the military law of the United States in relation to.
(1) offenses solely against the property or security of the
United States or offenses solely against the property or
person of United States personnel; and
(2) offenses arising out of any act or omission done in
performance of official duty.
(c) The authorities of either government may request the
authorities of the other government to waive their primary
right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military
authorities to maintain good order and discipline among their
forces, Philippine authorities will, upon request by the United
States, waive their primary right to exercise jurisdiction
except in cases of particular importance to the Philippines. If
the Government of the Philippines determines that the case
is of particular importance, it shall communicate such
determination to the United States authorities within twenty
(20) days after the Philippine authorities receive the United
States request.
(e) When the United States military commander determines that
an offense charged by authorities of the Philippines against
United states personnel arises out of an act or omission
done in the performance of official duty, the commander will
issue a certificate setting forth such determination. This
certificate will be transmitted to the appropriate authorities of
the Philippines and will constitute sufficient proof of
performance of official duty for the purposes of paragraph
3(b)(2) of this Article. In those cases where the Government
of the Philippines believes the circumstances of the case
require a review of the duty certificate, United States military
authorities and Philippine authorities shall consult
immediately. Philippine authorities at the highest levels may
also present any information bearing on its validity. United
States military authorities shall take full account of the
Philippine position. Where appropriate, United States military
authorities will take disciplinary or other action against
offenders in official duty cases, and notify the Government of
the Philippines of the actions taken.
(f) If the government having the primary right does not exercise
jurisdiction, it shall notify the authorities of the other
government as soon as possible.
(g) The authorities of the Philippines and the United States shall
notify each other of the disposition of all cases in which both
the authorities of the Philippines and the United States have
the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the
Philippines and United States shall assist each other in the
arrest of United States personnel in the Philippines and in
handling them over to authorities who are to exercise
jurisdiction in accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine
authorities of the arrest or detention of United States personnel
who are subject of Philippine primary or exclusive jurisdiction.
Philippine authorities shall promptly notify United States military
authorities of the arrest or detention of any United States
personnel.
6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside
with United States military authorities, if they so request, from
the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon
formal notification by the Philippine authorities and without
delay, make such personnel available to those authorities in
time for any investigative or judicial proceedings relating to the
offense with which the person has been charged in
extraordinary cases, the Philippine Government shall present its
position to the United States Government regarding custody,
which the United States Government shall take into full account.
In the event Philippine judicial proceedings are not completed
within one year, the United States shall be relieved of any
obligations under this paragraph. The one-year period will not
include the time necessary to appeal. Also, the one-year period
will not include any time during which scheduled trial
procedures are delayed because United States authorities, after
timely notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and
Philippine authorities shall assist each other in the carrying out
of all necessary investigation into offenses and shall cooperate
in providing for the attendance of witnesses and in the collection
and production of evidence, including seizure and, in proper
cases, the delivery of objects connected with an offense.
8. When United States personnel have been tried in accordance
with the provisions of this Article and have been acquitted or
 have been convicted and are serving, or have served their
sentence, or have had their sentence remitted or suspended, or
have been pardoned, they may not be tried again for the same
offense in the Philippines. Nothing in this paragraph, however,
shall prevent United States military authorities from trying
United States personnel for any violation of rules of discipline
arising from the act or omission which constituted an offense for
which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody,
or prosecuted by Philippine authorities, they shall be accorded
all procedural safeguards established by the law of the
Philippines. At the minimum, United States personnel shall be
entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or
charges made against them and to have reasonable time to
prepare a defense;
(c) To be confronted with witnesses against them and to cross
examine such witnesses;
(d) To present evidence in their defense and to have compulsory
process for obtaining witnesses;
(e) To have free and assisted legal representation of their own
choice on the same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by
United States authorities, and to have such authorities
present at all judicial proceedings. These proceedings shall
be public unless the court, in accordance with Philippine
laws, excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United
States personnel shall be carried out in facilities agreed on by
appropriate Philippine and United States authorities. United
States Personnel serving sentences in the Philippines shall
have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in
Philippine courts of ordinary jurisdiction, and shall not be subject
to the jurisdiction of Philippine military or religious courts.
Article VI
Claims
1. Except for contractual arrangements, including United States
foreign military sales letters of offer and acceptance and leases
of military equipment, both governments waive any and all
claims against each other for damage, loss or destruction to
property of each others armed forces or for death or injury to
their military and civilian personnel arising from activities to
which this agreement applies.
2. For claims against the United States, other than contractual
claims and those to which paragraph 1 applies, the United
States Government, in accordance with United States law
regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage,
loss, personal injury or death, caused by acts or omissions of
United States personnel, or otherwise incident to the non-
combat activities of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies, and
other property imported into or acquired in the Philippines by or
on behalf of the United States armed forces in connection with
activities to which this agreement applies, shall be free of all
Philippine duties, taxes and other similar charges. Title to such
property shall remain with the United States, which may remove
such property from the Philippines at any time, free from export
duties, taxes, and other similar charges. The exemptions
provided in this paragraph shall also extend to any duty, tax, or
other similar charges which would otherwise be assessed upon
such property after importation into, or acquisition within, the
Philippines. Such property may be removed from the
Philippines, or disposed of therein, provided that disposition of
such property in the Philippines to persons or entities not
entitled to exemption from applicable taxes and duties shall be
subject to payment of such taxes, and duties and prior approval
of the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects,
and other property for the personal use of United States
personnel may be imported into and used in the Philippines free
of all duties, taxes and other similar charges during the period of
their temporary stay in the Philippines. Transfers to persons or
entities in the Philippines not entitled to import privileges may
only be made upon prior approval of the appropriate Philippine
authorities including payment by the recipient of applicable
duties and taxes imposed in accordance with the laws of the
 Philippines. The exportation of such property and of property
acquired in the Philippines by United States personnel shall be
free of all Philippine duties, taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may
enter the Philippines upon approval of the Government of the
Philippines in accordance with procedures stipulated in
implementing arrangements.
2. Vessels operated by or for the United States armed forces may
enter the Philippines upon approval of the Government of the
Philippines. The movement of vessels shall be in accordance
with international custom and practice governing such vessels,
and such agreed implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United
States armed forces shall not be subject to the payment of
landing or port fees, navigation or over flight charges, or tolls or
other use charges, including light and harbor dues, while in the
Philippines. Aircraft operated by or for the United States armed
forces shall observe local air traffic control regulations while in
the Philippines. Vessels owned or operated by the United States
solely on United States Government non-commercial service
shall not be subject to compulsory pilotage at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on which the parties
have notified each other in writing through the diplomatic channel that
they have completed their constitutional requirements for entry into
force. This agreement shall remain in force until the expiration of 180
days from the date on which either party gives the other party notice in
writing that it desires to terminate the agreement.
Via these consolidated[11] petitions for certiorari and prohibition,
petitioners - as legislators, non-governmental organizations, citizens and
taxpayers - assail the constitutionality of the VFA and impute to herein
respondents grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the
following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or
legislators to question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of
Section 25, Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try
offenses committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses
punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the
Constitution?
b. the Prohibition against nuclear weapons under Article II, Section
8?
c. Section 28 (4), Article VI of the Constitution granting the
exemption from taxes and duties for the equipment, materials
supplies and other properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the
ground that the latter have not shown any interest in the case, and that
petitioners failed to substantiate that they have sustained, or will sustain
direct injury as a result of the operation of the VFA. [12] Petitioners, on the
other hand, counter that the validity or invalidity of the VFA is a matter of
transcendental importance which justifies their standing. [13]
A party bringing a suit challenging the constitutionality of a law, act, or
statute must show not only that the law is invalid, but also that he has
sustained or in is in immediate, or imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. He must show that he has been, or is about to be,
denied some right or privilege to which he is lawfully entitled, or that he is
about to be subjected to some burdens or penalties by reason of the statute
complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of
this Court, that they have sustained, or are in danger of sustaining any direct
injury as a result of the enforcement of the VFA. As taxpayers, petitioners
have not established that the VFA involves the exercise by Congress of its
taxing or spending powers.[15] On this point, it bears stressing that a
taxpayers suit refers to a case where the act complained of directly involves
the illegal disbursement of public funds derived from taxation. [16] Thus,
in Bugnay Const. & Development Corp. vs. Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be
benefited or injured by the judgment or entitled to the avails of the suit as a
real party in interest. Before he can invoke the power of judicial review, he
must specifically prove that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he will sustain a direct
injury as a result of the enforcement of the questioned statute or contract. It
is not sufficient that he has merely a general interest common to all members
of the public.
Clearly, inasmuch as no public funds raised by taxation are involved in
this case, and in the absence of any allegation by petitioners that public
funds are being misspent or illegally expended, petitioners, as taxpayers,
have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker
Arroyo, as petitioners-legislators, do not possess the requisite locus standi to
maintain the present suit. While this Court, in Phil. Constitution
Association vs. Hon. Salvador Enriquez, [18] sustained the legal standing of
a member of the Senate and the House of Representatives to question the
validity of a presidential veto or a condition imposed on an item in an
appropriation bull, we cannot, at this instance, similarly uphold petitioners
standing as members of Congress, in the absence of a clear showing of any
direct injury to their person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as
the delegation of the power of Congress to grant tax exemptions, are more
apparent than real. While it may be true that petitioners pointed to provisions
of the VFA which allegedly impair their legislative powers, petitioners failed
however to sufficiently show that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is
stripped of standing in these cases. As aptly observed by the Solicitor
General, the IBP lacks the legal capacity to bring this suit in the absence of a
board resolution from its Board of Governors authorizing its National
President to commence the present action.[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.
To our mind, the fact that the President referred the VFA to the Senate
under Section 21, Article VII, and that the Senate extended its concurrence
under the same provision, is immaterial. For in either case, whether under
Section 21, Article VII or Section 25, Article XVIII, the fundamental law is
crystalline that the concurrence of the Senate is mandatory to comply with
the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of
United States troops and personnel visiting the Philippines. It provides for the
guidelines to govern such visits of military personnel, and further defines the
rights of the United States and the Philippine government in the matter of
criminal jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with
treaties involving foreign military bases, troops, or facilities, should apply in
the instant case. To a certain extent and in a limited sense, however, the
provisions of section 21, Article VII will find applicability with regard to the
issue and for the sole purpose of determining the number of votes required to
obtain the valid concurrence of the Senate, as will be further discussed
hereunder.
It is a finely-imbedded principle in statutory construction that a special
provision or law prevails over a general one. Lex specialis derogat
generali. Thus, where there is in the same statute a particular enactment
and also a general one which, in its most comprehensive sense, would
include what is embraced in the former, the particular enactment must be
operative, and the general enactment must be taken to affect only such
cases within its general language which are not within the provision of the
particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that
general legislation must give way to a special legislation on the same
subject, and generally be so interpreted as to embrace only cases in which
the special provisions are not applicable (Sto. Domingo vs. de los Angeles,
96 SCRA 139), that a specific statute prevails over a general statute (De
Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal
theoretical application to a particular case, the one designed therefor
specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is
inapplicable to mere transient agreements for the reason that there is no
permanent placing of structure for the establishment of a military base. On
this score, the Constitution makes no distinction between transient and
permanent. Certainly, we find nothing in Section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed permanently in
the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made
by law, the Court should not distinguish- Ubi lex non distinguit nec nos
distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25,
Article XVIII is not controlling since no foreign military bases, but merely
foreign troops and facilities, are involved in the VFA. Notably, a perusal of
said constitutional provision reveals that the proscription covers foreign
military bases, troops, or facilities. Stated differently, this prohibition is not
limited to the entry of troops and facilities without any foreign bases being
established. The clause does not refer to foreign military bases,
troops, or facilities collectively but treats them as separate and independent
subjects. The use of comma and the disjunctive word or clearly signifies
disassociation and independence of one thing from the others included in the
enumeration,[28]such that, the provision contemplates three different
situations - a military treaty the subject of which could be either (a) foreign
bases, (b) foreign troops, or (c) foreign facilities - any of the three standing
alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested
during the deliberations of the 1986 Constitutional Commission, is consistent
with this interpretation:
MR. MAAMBONG. I just want to address a question or two to
Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or
facilities. My first question is: If the country does enter into such
kind of a treaty, must it cover the three-bases, troops or
facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers
only one or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can
enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can
enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit
more, we will find some. We just want to cover everything.
[29]
(Underscoring Supplied)
Moreover, military bases established within the territory of another state
is no longer viable because of the alternatives offered by new means and
weapons of warfare such as nuclear weapons, guided missiles as well as
huge sea vessels that can stay afloat in the sea even for months and years
without returning to their home country. These military warships are actually
used as substitutes for a land-home base not only of military aircraft but also
of military personnel and facilities. Besides, vessels are mobile as compared
to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the
requirements of Section 25 were complied with when the Senate gave its
concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or
facilities in the country, unless the following conditions are sufficiently
met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred
in by the Senate and, when so required by congress, ratified by a majority of
the votes cast by the people in a national referendum; and (c) recognized as
a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the
case of the VFA. The concurrence handed by the Senate through Resolution
No. 18 is in accordance with the provisions of the Constitution, whether
under the general requirement in Section 21, Article VII, or the specific
mandate mentioned in Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes cast in a national
referendum being unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires
that a treaty or international agreement, to be valid and effective, must
be concurred in by at least two-thirds of all the members of the
Senate. On the other hand, Section 25, Article XVIII simply provides that the
treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all
the members of the Senate is clearly required so that the concurrence
contemplated by law may be validly obtained and deemed present. While it is
true that Section 25, Article XVIII requires, among other things, that the
treaty-the VFA, in the instant case-be duly concurred in by the Senate, it is
very true however that said provision must be related and viewed in light of
the clear mandate embodied in Section 21, Article VII, which in more specific
terms, requires that the concurrence of a treaty, or international agreement,
be made by a two -thirds vote of all the members of the Senate. Indeed,
Section 25, Article XVIII must not be treated in isolation to section 21, Article,
VII.
As noted, the concurrence requirement under Section 25, Article XVIII
must be construed in relation to the provisions of Section 21, Article VII. In a
more particular language, the concurrence of the Senate contemplated under
Section 25, Article XVIII means that at least two-thirds of all the members of
the Senate favorably vote to concur with the treaty-the VFA in the instant
case.
Under these circumstances, the charter provides that the Senate shall
be composed of twenty-four (24) Senators.[30] Without a tinge of doubt, two-
thirds (2/3) of this figure, or not less than sixteen (16) members, favorably
acting on the proposal is an unquestionable compliance with the requisite
number of votes mentioned in Section 21 of Article VII. The fact that there
were actually twenty-three (23) incumbent Senators at the time the voting
was made,[31] will not alter in any significant way the circumstance that more
than two-thirds of the members of the Senate concurred with the proposed
VFA, even if the two-thirds vote requirement is based on this figure of actual
members (23). In this regard, the fundamental law is clear that two-thirds of
the 24 Senators, or at least 16 favorable votes, suffice so as to render
compliance with the strict constitutional mandate of giving concurrence to the
subject treaty.
Having resolved that the first two requisites prescribed in Section 25,
Article XVIII are present, we shall now pass upon and delve on the
requirement that the VFA should be recognized as a treaty by the United
States of America.
Petitioners content that the phrase recognized as a treaty, embodied in
section 25, Article XVIII, means that the VFA should have the advice and
consent of the United States Senate pursuant to its own constitutional
process, and that it should not be considered merely an executive agreement
by the United States.
In opposition, respondents argue that the letter of United States
Ambassador Hubbard stating that the VFA is binding on the United States
Government is conclusive, on the point that the VFA is recognized as a treaty
by the United States of America. According to respondents, the VFA, to be
binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a
treaty means that the other contracting party accepts or acknowledges the
agreement as a treaty.[32] To require the other contracting state, the United
States of America in this case, to submit the VFA to the United States Senate
for concurrence pursuant to its Constitution, [33] is to accord strict meaning to
the phrase.
Well-entrenched is the principle that the words used in the Constitution
are to be given their ordinary meaning except where technical terms are
employed, in which case the significance thus attached to them prevails. Its
language should be understood in the sense they have in common use. [34]
Moreover, it is inconsequential whether the United States treats the VFA
only as an executive agreement because, under international law, an
executive agreement is as binding as a treaty. [35] To be sure, as long as the
VFA possesses the elements of an agreement under international law, the
said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is
an international instrument concluded between States in written form and
governed by international law, whether embodied in a single instrument or in
two or more related instruments, and whatever its particular designation.
[36]
There are many other terms used for a treaty or international agreement,
some of which are: act, protocol, agreement, compromis d arbitrage,
concordat, convention, declaration, exchange of notes, pact, statute, charter
and modus vivendi. All writers, from Hugo Grotius onward, have pointed out
that the names or titles of international agreements included under the
general term treaty have little or no legal significance. Certain terms are
useful, but they furnish little more than mere description. [37]
Article 2(2) of the Vienna Convention provides that the provisions of
paragraph 1 regarding the use of terms in the present Convention are without
prejudice to the use of those terms, or to the meanings which may be given
to them in the internal law of the State.
Thus, in international law, there is no difference between treaties and
executive agreements in their binding effect upon states concerned, as long
as the negotiating functionaries have remained within their powers.
[38]
International law continues to make no distinction between treaties and
executive agreements: they are equally binding obligations upon nations. [39]
In our jurisdiction, we have recognized the binding effect of executive
agreements even without the concurrence of the Senate or
Congress. In Commissioner of Customs vs. Eastern Sea Trading, [40] we
had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the
necessity of subsequent congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations,
most-favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.
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 patent
and gross as to amount to an evasion of positive duty enjoined or to act at all
in contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the
President, as head of State, is the sole organ and authority in the external
affairs of the country. In many ways, the President is the chief architect of the
nations foreign policy; his dominance in the field of foreign relations is (then)
conceded.[51] Wielding vast powers an influence, his conduct in the external
affairs of the nation, as Jefferson describes, is executive altogether."[52]
As regards the power to enter into treaties or international agreements,
the Constitution vests the same in the President, subject only to the
concurrence of at least two-thirds vote of all the members of the Senate. In
this light, the negotiation of the VFA and the subsequent ratification of the
agreement are exclusive acts which pertain solely to the President, in the
lawful exercise of his vast executive and diplomatic powers granted him no
less than by the fundamental law itself. Into the field of negotiation the
Senate cannot intrude, and Congress itself is powerless to invade it.
[53]
Consequently, the acts or judgment calls of the President involving the
VFA-specifically the acts of ratification and entering into a treaty and those
necessary or incidental to the exercise of such principal acts - squarely fall
within the sphere of his constitutional powers and thus, may not be validly
struck down, much less calibrated by this Court, in the absence of clear
showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA
and in submitting the same to the Senate for concurrence, acted within the
confines and limits of the powers vested in him by the Constitution. It is of no
moment that the President, in the exercise of his wide latitude of discretion
and in the honest belief that the VFA falls within the ambit of Section 21,
Article VII of the Constitution, referred the VFA to the Senate for concurrence
under the aforementioned provision. Certainly, no abuse of discretion, much
less a grave, patent and whimsical abuse of judgment, may be imputed to
the President in his act of ratifying the VFA and referring the same to the
Senate for the purpose of complying with the concurrence requirement
embodied in the fundamental law. In doing so, the President merely
performed a constitutional task and exercised a prerogative that chiefly
pertains to the functions of his office. Even if he erred in submitting the VFA
to the Senate for concurrence under the provisions of Section 21 of Article
VII, instead of Section 25 of Article XVIII of the Constitution, still, the
President may not be faulted or scarred, much less be adjudged guilty of
committing an abuse of discretion in some patent, gross, and capricious
manner.
For while it is conceded that Article VIII, Section 1, of the Constitution
has broadened the scope of judicial inquiry into areas normally left to the
political departments to decide, such as those relating to national security, it
has not altogether done away with political questions such as those which
arise in the field of foreign relations.[54] The High Tribunals function, as
sanctioned by Article VIII, Section 1, is merely (to) check whether or not the
governmental branch or agency has gone beyond the constitutional limits of
its jurisdiction, not that it erred or has a different view. In the absence of a
showing (of) grave abuse of discretion amounting to lack of jurisdiction, there
is no occasion for the Court to exercise its corrective powerIt has no power
to look into what it thinks is apparent error. [55]
As to the power to concur with treaties, the constitution lodges the same
with the Senate alone. Thus, once the Senate[56] performs that power, or
exercises its prerogative within the boundaries prescribed by the
Constitution, the concurrence cannot, in like manner, be viewed to constitute
an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in
the exercise of its discretion and acting within the limits of such power, may
not be similarly faulted for having simply performed a task conferred and
sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative
in character;[57] the Senate, as an independent body possessed of its own
erudite mind, has the prerogative to either accept or reject the proposed
agreement, and whatever action it takes in the exercise of its wide latitude of
discretion, pertains to the wisdom rather than the legality of the act. In this
sense, the Senate partakes a principal, yet delicate, role in keeping the
principles of separation of powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments remain true to their form in
a democratic government such as ours. The Constitution thus animates,
through this treaty-concurring power of the Senate, a healthy system of
checks and balances indispensable toward our nations pursuit of political
maturity and growth. True enough, rudimentary is the principle that matters
pertaining to the wisdom of a legislative act are beyond the ambit and
province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the
part of respondents, this Court- as the final arbiter of legal controversies and
staunch sentinel of the rights of the people - is then without power to conduct
an incursion and meddle with such affairs purely executive and legislative in
character and nature. For the Constitution no less, maps out the distinct
boundaries and limits the metes and bounds within which each of the three
political branches of government may exercise the powers exclusively and
essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant
petitions are hereby DISMISSED.
SO ORDERED.

SUZETTE NICOLAS y SOMBILON, G.R. No. 175888

Petitioner,

VS
ROMULO
X ---------------------------------------------------------------------------------------- X
DECISION
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or
for review of the Decision of the Court of Appeals in Lance Corporal Daniel J.
Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212,
dated January 2, 2007.
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of
the United States Armed Forces. He was charged with the crime of rape
committed against a Filipina, petitioner herein, sometime on November 1,
2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt.
Chad Brian Carpentier, Dominic Duplantis, Keith Silkwood
and Timoteo L. Soriano, Jr. of the crime of Rape under
Article 266-A of the Revised Penal Code, as amended by
Republic Act 8353, upon a complaint under oath filed by
Suzette S. Nicolas, which is attached hereto and made an
integral part hereof as Annex A, committed as follows:
That on or about the First (1 st) day of
November 2005, inside the Subic Bay
Freeport Zone, Olongapo City and within the
jurisdiction of this Honorable Court, the
above-named accuseds (sic), being then
members of the United States Marine Corps,
except Timoteo L. Soriano, Jr., conspiring,
confederating together and mutually helping
one another, with lewd design and by means
of force, threat and intimidation, with abuse
of superior strength and taking advantage of
the intoxication of the victim, did then and
there willfully, unlawfully and feloniously
sexually abuse and have sexual intercourse
with or carnal knowledge of one Suzette S.
Nicolas, a 22-year old unmarried woman
inside a Starex Van with Plate No. WKF-
162, owned by Starways Travel and Tours,
with Office address at 8900 P. Victor St.,
Guadalupe, Makati City, and driven by
accused Timoteo L. Soriano, Jr., against the
will and consent of the said Suzette S.
Nicolas, to her damage and prejudice.
CONTRARY TO LAW.[1]
Pursuant to the Visiting Forces Agreement (VFA) between the
Republic of the Philippines and the United States, entered into on February
10, 1998, the United States, at its request, was granted custody of defendant
Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial Court
(RTC) of Zambales to the RTC of Makati for security reasons, the United
States Government faithfully complied with its undertaking to bring defendant
Smith to the trial court every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of the
trial, rendered its Decision, finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of
the prosecution to adduce sufficient evidence against
accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH
SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the
US Marine Corps assigned at the USS Essex, are hereby
ACQUITTED to the crime charged.
The prosecution having presented sufficient
evidence against accused L/CPL. DANIEL J. SMITH, also of
the US Marine Corps at the USS Essex, this Court hereby
finds him GUILTY BEYOND REASONABLE DOUBT of the
crime of RAPE defined under Article 266-A, paragraph 1 (a)
of the Revised Penal Code, as amended by R.A. 8353, and,
in accordance with Article 266-B, first paragraph thereof,
hereby sentences him to suffer the penalty of reclusion
perpetua together with the accessory penalties provided for
under Article 41 of the same Code.
 Pursuant to Article V, paragraph No. 10, of the and the Romulo-Kenney Agreement of December 22, 2006 which states:
Visiting Forces Agreement entered into by
the Philippines and the United States, accused L/CPL.
The Department of Foreign Affairs of the Republic of
DANIEL J. SMITH shall serve his sentence in the facilities
the Philippines and the Embassy of the United States of
that shall, thereafter, be agreed upon by appropriate
America agree that, in accordance with the Visiting Forces
Philippine and United States authorities. Pending agreement
Agreement signed between the two nations, upon transfer of
on such facilities, accused L/CPL. DANIEL J. SMITH is
Lance Corporal Daniel J. Smith, United States Marine Corps,
hereby temporarily committed to the Makati City Jail.
from the Makati City Jail, he will be detained at the first floor,
Rowe (JUSMAG) Building, U.S. Embassy Compound in a
Accused L/CPL. DANIEL J. SMITH is further
room of approximately 10 x 12 square feet. He will be
sentenced to indemnify complainant SUZETTE S. NICOLAS
guarded round the clock by U.S. military personnel. The
in the amount of P50,000.00 as compensatory damages
Philippine police and jail authorities, under the direct
plus P50,000.00 as moral damages.
supervision of the Philippine Department of Interior and
Local Government (DILG) will have access to the place of
SO ORDERED.[2]
detention to ensure the United States is in compliance with
the terms of the VFA.

As a result, the Makati court ordered Smith detained at the Makati jail
until further orders. The matter was brought before the Court of Appeals which decided
on January 2, 2007, as follows:
On December 29, 2006, however, defendant Smith was taken out of
the Makati jail by a contingent of Philippine law enforcement agents, WHEREFORE, all the foregoing considered, we
purportedly acting under orders of the Department of the Interior and Local resolved to DISMISS the petition for having become moot. [3]
Government, and brought to a facility for detention under the control of the
United States government, provided for under new agreements between the Hence, the present actions.
Philippines and the United States, referred to as the Romulo-Kenney
Agreement of December 19, 2006 which states: The petitions were heard on oral arguments on September 19, 2008,
after which the parties submitted their memoranda.
The Government of the Republic of the Philippines and the
Government of the United States of America agree that, in Petitioners contend that the Philippines should have custody of
accordance with the Visiting Forces Agreement signed
defendant L/CPL Smith because, first of all, the VFA is void and
between our two nations, Lance Corporal Daniel J. Smith,
United States Marine Corps, be returned to U.S. military unconstitutional.
custody at the U.S. Embassy in Manila.
This issue had been raised before, and this Court resolved in favor of
(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO G. ROMULO
the constitutionality of the VFA. This was in Bayan v. Zamora,[4] brought
Representative of the United States Representative of the
Republic by Bayan, one of petitioners in the present cases.
of America of the Philippines
Against the barriers of res judicata vis--vis Bayan, and stare
DATE: 12-19-06 DATE: December 19, 2006__
decisis vis--vis all the parties, the reversal of the previous ruling is sought on
the ground that the issue is of primordial importance, involving the
sovereignty of the Republic, as well as a specific mandate of the
Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the
Agreement between the Philippines and the United States of
America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held for
that purpose, and recognized as a treaty by the other
contracting State.
The reason for this provision lies in history and the Philippine
experience in regard to the United States military bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the
basis for the Philippine Commonwealth and, eventually, for the recognition of
independence, the United States agreed to cede to the Philippines all the
territory it acquired from Spain under the Treaty of Paris, plus a few islands
later added to its realm, except certain naval ports and/or military bases and
facilities, which the United States retained for itself.
This is noteworthy, because what this means is
that Clark and Subic and the other places in the Philippines covered by the
RP-US Military Bases Agreement of 1947 were not Philippine territory, as
they were excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases
except to the extent allowed by the United States. Furthermore, the RP-US
Military Bases Agreement was never advised for ratification by the United
States Senate, a disparity in treatment, because the Philippines regarded it
as a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to
the Philippines; and with the expiration of the RP-US Military Bases
Agreement in 1991, the territory covered by these bases were finally ceded
to the Philippines.
To prevent a recurrence of this experience, the provision in question
was adopted in the 1987 Constitution.
The provision is thus designed to ensure that any agreement
allowing the presence of foreign military bases, troops or facilities in
Philippine territory shall be equally binding on the Philippines and the foreign
sovereign State involved. The idea is to prevent a recurrence of the situation
in which the terms and conditions governing the presence of foreign armed
forces in our territory were binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the
question is whether or not the presence of US Armed Forces in Philippine
territory pursuant to the VFA is allowed under a treaty duly concurred in by
the Senate xxx and recognized as a treaty by the other contracting State.
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,[5] the VFA was duly concurred in by
the Philippine Senate and has been recognized as a treaty by the United
States as attested and certified by the duly authorized representative of
the United States government.
The fact that the VFA was not submitted for advice and consent of
the United States Senate does not detract from its status as a binding
international agreement or treaty recognized by the said State. For this is a
matter of internal United States law. Notice can be taken of the internationally
known practice by the United States of submitting to its Senate for advice
and consent agreements that are policymaking in nature, whereas those that
carry out or further implement these policymaking agreements are merely
submitted to Congress, under the provisions of the so-called CaseZablocki
Act, within sixty days from ratification.[6]
The second reason has to do with the relation between the VFA and
the RP-US Mutual Defense Treaty of August 30, 1951. This earlier
agreement was signed and duly ratified with the concurrence of both the
Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states:[7]
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC
OF THE PHILIPPINES AND THE UNITED STATES OF
AMERICA. Signed at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the
Charter of the United Nations and their desire to live in
peace with all peoples and all governments, and desiring to
strengthen the fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which
brought their two peoples together in a common bond of
sympathy and mutual ideals to fight side-by-side against
imperialist aggression during the last war.
Desiring to declare publicly and formally their sense of
unity and their common determination to defend
themselves against external armed attack, so that no
potential aggressor could be under the illusion that either of
them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for
collective defense for the preservation of peace and
security pending the development of a more comprehensive
system of regional security in the Pacific area.
Agreeing that nothing in this present instrument shall be
considered or interpreted as in any way or sense altering or
diminishing any existing agreements or understandings
between the Republic of the Philippines and the United
States of America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set forth in the Charter
of the United Nations, to settle any international disputes in
which they may be involved by peaceful means in such a
manner that international peace and security and justice are
not endangered and to refrain in their international relation
from the threat or use of force in any manner inconsistent
with the purposes of the United Nations.
ARTICLE II. In order more effectively to achieve the
objective of this Treaty, the Parties separately and jointly
by self-help and mutual aid will maintain and develop
their individual and collective capacity to resist armed
attack.
ARTICLE III. The Parties, through their Foreign Ministers or
their deputies, will consult together from time to time
regarding the implementation of this Treaty and whenever in
the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is
threatened by external armed attack in the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack in
the Pacific area on either of the parties would be dangerous
to its own peace and safety and declares that it would act to
meet the common dangers in accordance with its
constitutional processes.
Any such armed attack and all measures taken as a result
thereof shall be immediately reported to the Security Council
of the United Nations. Such measures shall be terminated
when the Security Council has taken the measures
necessary to restore and maintain international peace and
security.
ARTICLE V. For the purpose of Article IV, an armed attack
on either of the Parties is deemed to include an armed attack
on the metropolitan territory of either of the Parties, or on the
island territories under its jurisdiction in the Pacific Ocean, its
armed forces, public vessels or aircraft in the Pacific.
ARTICLE VI. This Treaty does not affect and shall not be
interpreted as affecting in any way the rights and obligations
of the Parties under the Charter of the United Nations or the
responsibility of the United Nations for the maintenance of
international peace and security.
ARTICLE VII. This Treaty shall be ratified by the Republic of
the Philippines and the United Nations of America in
accordance with their respective constitutional processes
and will come into force when instruments of ratification
thereof have been exchanged by them at Manila.
 ARTICLE VIII. This Treaty shall remain in force Considering that cooperation between the United
indefinitely. Either Party may terminate it one year after States and the Republic of the Philippines promotes
notice has been given to the other party. their common security interests;

IN WITHNESS WHEREOF the undersigned Recognizing the desirability of defining the treatment
Plenipotentiaries have signed this Treaty. of United States personnel visiting the Republic of
the Philippines;
DONE in duplicate at Washington this thirtieth day of August,
1951. Have agreed as follows:[9]

For the Republic of the Philippines: Accordingly, as an implementing agreement of the RP-US Mutual
(Sgd.) CARLOS P. ROMULO
Defense Treaty, it was not necessary to submit the VFA to the US Senate for
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO advice and consent, but merely to the US Congress under the CaseZablocki
(Sgd.) DIOSDADO MACAPAGAL Act within 60 days of its ratification. It is for this reason that the US has
certified that it recognizes the VFA as a binding international agreement, i.e.,
For the United States of America:
a treaty, and this substantially complies with the requirements of Art. XVIII,
(Sgd.) DEAN ACHESON Sec. 25 of our Constitution.[10]
(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY The provision of Art. XVIII, Sec. 25 of the Constitution, is complied
(Sgd.) ALEXANDER WILEY[8]
with by virtue of the fact that the presence of the US Armed Forces through
the VFA is a presence allowed under the RP-US Mutual Defense
Clearly, therefore, joint RP-US military exercises for the purpose of Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and
developing the capability to resist an armed attack fall squarely under the concurred in by both the Philippine Senate and the US Senate, there is no
provisions of the RP-US Mutual Defense Treaty. The VFA, which is the violation of the Constitutional provision resulting from such presence.
instrument agreed upon to provide for the joint RP-US military exercises, is
simply an implementing agreement to the main RP-US Military Defense The VFA being a valid and binding agreement, the parties are
Treaty. The Preamble of the VFA states: required as a matter of international law to abide by its terms and provisions.

The Government of the United States of America and the The VFA provides that in cases of offenses committed by the
Government of the Republic of the Philippines, members of the US Armed Forces in the Philippines, the following rules
Reaffirming their faith in the purposes and principles of the apply:
Charter of the United Nations and their desire to strengthen
international and regional security in the Pacific area;
Article V
Reaffirming their obligations under the Mutual Defense Criminal Jurisdiction
Treaty of August 30, 1951;
xxx
Noting that from time to time elements of the United 6. The custody of any United States personnel over
States armed forces may visit the Republic of the whom the Philippines is to exercise jurisdiction shall
Philippines;
 immediately reside with United States military authorities, if
they so request, from the commission of the offense until
completion of all judicial proceedings. United States military
authorities shall, upon formal notification by the Philippine
authorities and without delay, make such personnel available
to those authorities in time for any investigative or judicial
proceedings relating to the offense with which the person
has been charged. In extraordinary cases, the Philippine
Government shall present its position to the United States
Government regarding custody, which the United States
Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one
year, the United States shall be relieved of any obligations
under this paragraph. The one year period will not include
the time necessary to appeal. Also, the one year period will
not include any time during which scheduled trial procedures
are delayed because United States authorities, after timely
notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.
Petitioners contend that these undertakings violate another provision
of the Constitution, namely, that providing for the exclusive power of this
Court to adopt rules of procedure for all courts in the Philippines (Art. VIII,
Sec. 5[5]). They argue that to allow the transfer of custody of an accused to a
foreign power is to provide for a different rule of procedure for that accused,
which also violates the equal protection clause of the Constitution (Art. III,
Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a
substantial basis for a different treatment of a member of a foreign military
armed forces allowed to enter our territory and all other accused. [11]
The rule in international law is that a foreign armed forces allowed to
enter ones territory is immune from local jurisdiction, except to the extent
agreed upon. The Status of Forces Agreements involving foreign military
units around the world vary in terms and conditions, according to the
situation of the parties involved, and reflect their bargaining power. But the
principle remains, i.e., the receiving State can exercise jurisdiction over the
forces of the sending State only to the extent agreed upon by the parties. [12]
As a result, the situation involved is not one in which the power of
this Court to adopt rules of procedure is curtailed or violated, but rather one
in which, as is normally encountered around the world, the laws (including
rules of procedure) of one State do not extend or apply except to the extent
agreed upon to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting foreign armed forces.
Nothing in the Constitution prohibits such agreements recognizing
immunity from jurisdiction or some aspects of jurisdiction (such as custody),
in relation to long-recognized subjects of such immunity like Heads of State,
diplomats and members of the armed forces contingents of a foreign State
allowed to enter another States territory. On the contrary, the Constitution
states that the Philippines adopts the generally accepted principles of
international law as part of the law of the land. (Art. II, Sec. 2).
Applying, however, the provisions of VFA, the Court finds that there
is a different treatment when it comes to detention as against custody. The
moment the accused has to be detained, e.g., after conviction, the rule that
governs is the following provision of the VFA:
Article V
Criminal Jurisdiction
xxx
Sec. 10. The confinement or detention by Philippine
authorities of United States personnel shall be carried out in
facilities agreed on by appropriate Philippines and United
Statesauthorities. United States personnel serving
sentences in the Philippines shall have the right to visits and
material assistance.
It is clear that the parties to the VFA recognized the difference
between custody during the trial and detention after conviction, because they
provided for a specific arrangement to cover detention. And this specific
arrangement clearly states not only that the detention shall be carried out in
facilities agreed on by authorities of both parties, but also that the detention
shall be by Philippine authorities. Therefore, the Romulo-Kenney Agreements
of December 19 and 22, 2006, which are agreements on the detention of the
accused in the United States Embassy, are not in accord with the VFA itself
because such detention is not by Philippine authorities.
Respondents should therefore comply with the VFA and negotiate
with representatives of the United States towards an agreement on detention
facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the
VFA.
Next, the Court addresses the recent decision of the United States
Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-984, March 25,
2008), which held that treaties entered into by the United States are not
automatically part of their domestic law unless these treaties are self-
executing or there is an implementing legislation to make them enforceable.
On February 3, 2009, the Court issued a Resolution, thus:
G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto
Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga,
et al. v. Daniel Smith, et al.); and G.R. No. 176222
(Bagong Alyansang Makabayan [BAYAN], et al. v.
President Gloria Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are required to
submit within three (3) days a Comment/Manifestation on the
following points:
1. What is the implication on the RP-US Visiting
Forces Agreement of the recent US Supreme Court
decision in Jose Ernesto Medellin v. Texas, dated
March 25, 2008, to the effect that treaty stipulations
that are not self-executory can only be enforced
pursuant to legislation to carry them into effect; and
that, while treaties may comprise international
commitments, they are not domestic law unless
Congress has enacted implementing statutes or the
treaty itself conveys an intention that it be self-
executory and is ratified on these terms?
2. Whether the VFA is enforceable in the US as
domestic law, either because it is self-executory or
because there exists legislation to implement it.
3. Whether the RP-US Mutual Defense Treaty
of August 30, 1951 was concurred in by the US
Senate and, if so, is there proof of the US Senate
advice and consent resolution? Peralta, J., no part.
After deliberation, the Court holds, on these points, as follows:
First, the VFA is a self-executing Agreement, as that term is defined
in Medellin itself, because the parties intend its provisions to be enforceable,
precisely because the Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty. As a matter of fact,
the VFA has been implemented and executed, with the US faithfully
complying with its obligation to produce L/CPL Smith before the court during
the trial.
Secondly, the VFA is covered by implementing legislation, namely, the Case-
Zablocki Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent
of the US Congress that executive agreements registered under this Act
within 60 days from their ratification be immediately implemented. The
parties to these present cases do not question the fact that the VFA has been
registered under the Case-Zablocki Act.
In sum, therefore, the VFA differs from the Vienna Convention on Consular
Relations and the Avena decision of the International Court of Justice (ICJ),
subject matter of the Medellin decision. The Convention and the ICJ decision
are not self-executing and are not registrable under the Case-Zablocki Act,
and thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and
consented to by the US Senate on March 20, 1952, as reflected in the US
Congressional Record, 82ndCongress, Second Session, Vol. 98 Part 2, pp.
2594-2595.
The framers of the Constitution were aware that the application of
international law in domestic courts varies from country to country.
 As Ward N. Ferdinandusse states in his Treatise, DIRECT
APPLICATION OF INTERNATIONAL CRIMINAL LAW IN NATIONAL
COURTS, some countries require legislation whereas others do not.
It was not the intention of the framers of the 1987 Constitution, in
adopting Article XVIII, Sec. 25, to require the other contracting State to
convert their system to achieve alignment and parity with ours. It was simply
required that the treaty be recognized as a treaty by the other contracting
State. With that, it becomes for both parties a binding international obligation
and the enforcement of that obligation is left to the normal recourse and
processes under international law.
Furthermore, as held by the US Supreme Court in Weinberger v.
[13]
Rossi, an executive agreement is a treaty within the meaning of that word
in international law and constitutes enforceable domestic law vis--
vis the United States. Thus, the US Supreme Court in Weinberger enforced
the provisions of the executive agreement granting preferential employment
to Filipinos in the US Bases here.
through implementing legislation. The VFA itself is another form of
implementation of its provisions.
WHEREFORE, the petitions are PARTLY GRANTED, and the Court
of Appeals Decision in CA-G.R. SP No. 97212 dated January 2,
2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the
Republic of the Philippines and the United States, entered into on February
10, 1998, is UPHELD as constitutional, but the Romulo-Kenney
Agreements of December 19 and 22, 2006 are DECLARED not in
accordance with the VFA, and respondent Secretary of Foreign Affairs is
hereby ordered to forthwith negotiate with the United States representatives
for the appropriate agreement on detention facilities under Philippine
authorities as provided in Art. V, Sec. 10 of the VFA, pending which
the status quo shall be maintained until further orders by this Court.
The Court of Appeals is hereby directed to resolve without delay the
related matters pending therein, namely, the petition for contempt and the
appeal of L/CPL Daniel Smith from the judgment of conviction.

No costs.
Accordingly, there are three types of treaties in the American system:
SO ORDERED.
1. Art. II, Sec. 2 treaties These are advised and consented
to by the US Senate in accordance with Art. II, Sec. 2 of
the US Constitution.

2. ExecutiveCongressional Agreements: These are joint

agreements of the President and Congress and need not be
submitted to the Senate.

3. Sole Executive Agreements. These are agreements

entered into by the President. They are to be submitted to
Congress within sixty (60) days of ratification under the
provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be implemented.
G.R. No. 151445 April 11, 2002
As regards the implementation of the RP-US Mutual Defense Treaty,
military aid or assistance has been given under it and this can only be done
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.
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.
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 Apart from these threshold issues, the Solicitor General claims that there is
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.
actually no question of constitutionality involved. The true object of the
instant suit, it is said, is to obtain an interpretation of the V FA. The Solicitor
General asks that we accord due deference to the executive determination
that "Balikatan 02-1" is covered by the VFA, considering the President's
monopoly in the field of foreign relations and her role as commander-in-chief
of the Philippine armed forces.
Given the primordial importance of the issue involved, it will suffice to
reiterate our view on this point in a related case:
Notwithstanding, in view of the paramount importance and
the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion,
brushes aside the procedural barrier and takes cognizance
of the petitions, as we have done in the early Emergency
Powers Cases, where we had occasion to rule:
'x x x ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders
issued by President Quirino although they were involving
only an indirect and general interest shared in common with
the public. The Court dismissed the objection that they were
not proper parties and ruled that 'transcendental
importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside,
if we must, technicalities of procedure.' We have since
then applied the exception in many other cases. [citation
omitted]
This principle was reiterated in the subsequent cases of Gonzales
vs. COMELEC, Daza vs. Singson, and Basco vs. Phil,
Amusement and Gaming Corporation, where we emphatically
held:
Considering however the importance to the public of the
case at bar, and in keeping with the Court's duty, under the
1987 Constitution, to determine whether or not the other
branches of the government have kept themselves within the
limits of the Constitution and the laws that they have not
abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance
of this petition. xxx'
 Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,
this Court ruled that in cases of transcendental importance, the
Court may relax the standing requirements and allow a suit to
prosper even where there is no direct injury to the party
claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional
question based on the doctrine of separation of powers, which
enjoins upon the department of the government a becoming respect
for each other's act, this Court nevertheless resolves to take
cognizance of the instant petition.6
Hence, we treat with similar dispatch the general objection to the supposed
prematurity of the action. At any rate, petitioners' concerns on the lack of any
specific regulation on the latitude of activity US personnel may undertake and
the duration of their stay has been addressed in the Terms of Reference.
The holding of "Balikatan 02-1" must be studied in the framework of the
treaty antecedents to which the Philippines bound itself. The first of these is
the Mutual Defense Treaty (MDT, for brevity). The MDT has been described
as the "core" of the defense relationship between the Philippines and its
traditional ally, the United States. Its aim is to enhance the strategic and
technological capabilities of our armed forces through joint training with its
American counterparts; the "Balikatan" is the largest such training exercise
directly supporting the MDT's objectives. It is this treaty to which the V FA
adverts and the obligations thereunder which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the decision
not to renew it created a vacuum in US-Philippine defense relations, that is,
until it was replaced by the Visiting Forces Agreement. It should be recalled
that on October 10, 2000, by a vote of eleven to three, this Court upheld the
validity of the VFA.7 The V FA provides the "regulatory mechanism" by which
"United States military and civilian personnel [may visit] temporarily in the
Philippines in connection with activities approved by the Philippine
Government." It contains provisions relative to entry and departure of
American personnel, driving and vehicle registration, criminal jurisdiction,
claims, importation and exportation, movement of vessels and aircraft, as
well as the duration of the agreement and its termination. It is the VFA which
gives continued relevance to the MDT despite the passage of years. Its
primary goal is to facilitate the promotion of optimal cooperation between
American and Philippine military forces in the event of an attack by a
common foe.
The first question that should be addressed is whether "Balikatan 02-1" is
covered by the Visiting Forces Agreement. To resolve this, it is necessary to
refer to the V FA itself: Not much help can be had therefrom, unfortunately,
since the terminology employed is itself the source of the problem. The VFA
permits United States personnel to engage, on an impermanent basis, in
"activities," the exact meaning of which was left undefined. The expression is
ambiguous, permitting a wide scope of undertakings subject only to the
approval of the Philippine government.8 The sole encumbrance placed on its
definition is couched in the negative, in that United States personnel must
"abstain from any activity inconsistent with the spirit of this agreement, and in
particular, from any political activity."9 All other activities, in other words, are
fair game.
We are not left completely unaided, however. The Vienna Convention on the
Law of Treaties, which contains provisos governing interpretations of
international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith ill accordance with the
ordinary meaning to be given to the tenus of the treaty in their
context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made
between all the parties in connexion with the conclusion of
the treaty;
(b) any instrument which was made by one or more parties
in connexion with the conclusion of the treaty and accepted
by the other parties as an instrument related to the party .
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the application of
its provisions;
 (b) any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its
interpretation;
(c) any relevant rules of international law applicable in the
relations between the parties.
4. A special meaning shall be given to a term if it is established that
the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of
its conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the
interpretation according to article 31 :
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd
unreasonable.
It is clear from the foregoing that the cardinal rule of interpretation must
involve an examination of the text, which is presumed to verbalize the parties'
intentions. The Convention likewise dictates what may be used as aids to
deduce the meaning of terms, which it refers to as the context of the treaty,
as well as other elements may be taken into account alongside the aforesaid
context. As explained by a writer on the Convention ,
[t]he Commission's proposals (which were adopted virtually without
change by the conference and are now reflected in Articles 31 and
32 of the Convention) were clearly based on the view that the text of
a treaty must be presumed to be the authentic expression of the
intentions of the parties; the Commission accordingly came down
firmly in favour of the view that 'the starting point of interpretation is
the elucidation of the meaning of the text, not an investigation ab
initio into the intentions of the parties'. This is not to say that
the travauxpreparatoires of a treaty , or the circumstances of its
conclusion, are relegated to a subordinate, and wholly ineffective,
role. As Professor Briggs points out, no rigid temporal prohibition on
resort to travaux preparatoires of a treaty was intended by the use of
the phrase 'supplementary means of interpretation' in what is now
Article 32 of the Vienna Convention. The distinction between the
general rule of interpretation and the supplementary means of
interpretation is intended rather to ensure that the supplementary
means do not constitute an alternative, autonomous method of
interpretation divorced from the general rule.10
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding
the meaning of the word .'activities" arose from accident. In our view, it was
deliberately made that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces may sojourn in Philippine
territory for purposes other than military. As conceived, the joint exercises
may include training on new techniques of patrol and surveillance to protect
the nation's marine resources, sea search-and-rescue operations to assist
vessels in distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that .'Balikatan 02-1," a "mutual anti-
terrorism advising, assisting and training exercise," falls under the umbrella
of sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the V FA support the
conclusion that combat-related activities -as opposed to combat itself -such
as the one subject of the instant petition, are indeed authorized.
That is not the end of the matter, though. Granted that "Balikatan 02-1" is
permitted under the terms of the VFA, what may US forces legitimately do in
furtherance of their aim to provide advice, assistance and training in the
global effort against terrorism? Differently phrased, may American troops
actually engage in combat in Philippine territory? The Terms of Reference are
explicit enough. Paragraph 8 of section I stipulates that US exercise
participants may not engage in combat "except in self-defense." We wryly
note that this sentiment is admirable in the abstract but difficult in
implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot
reasonably be expected to sit idly while the battle is brought to their very
doorstep. They cannot be expected to pick and choose their targets for they
will not have the luxury of doing so. We state this point if only to signify our
awareness that the parties straddle a fine line, observing the honored legal
maxim "Nemo potest facere per alium quod non potest facere per
directum."11 The indirect violation is actually petitioners' worry, that in reality,
"Balikatan 02-1 " is actually a war principally conducted by the United States
government, and that the provision on self-defense serves only as
camouflage to conceal the true nature of the exercise. A clear
pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the V FA allow foreign troops SEC. 8. The Philippines, consistent with the national interest, adopts
to engage in an offensive war on Philippine territory. We bear in mind the and pursues a policy of freedom from nuclear weapons in the
salutary proscription stated in the Charter of the United Nations, to wit: country.

Article 2 xxx xxx xxx xxx

The Organization and its Members, in pursuit of the Purposes stated The Constitution also regulates the foreign relations powers of the Chief
in Article 1, shall act in accordance with the following Principles. 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
xxx xxx xxx xxx members of the Senate."12 Even more pointedly, the Transitory Provisions
state:
4. All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political Sec. 25. After the expiration in 1991 of the Agreement between the
independence of any state, or in any other manner inconsistent with Republic of the Philippines and the United States of America
the Purposes of the United Nations. 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,
xxx xxx xxx xxx
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
In the same manner, both the Mutual Defense Treaty and the Visiting Forces other contracting state.
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
The aforequoted provisions betray a marked antipathy towards foreign
particular, the Mutual Defense Treaty was concluded way before the present
military presence in the country, or of foreign influence in general. Hence,
Charter, though it nevertheless remains in effect as a valid source of
foreign troops are allowed entry into the Philippines only by way of direct
international obligation. The present Constitution contains key provisions
exception. Conflict arises then between the fundamental law and our
useful in determining the extent to which foreign military troops are allowed in
obligations arising from international agreements.
Philippine territory. Thus, in the Declaration of Principles and State Policies, it
is provided that:
A rather recent formulation of the relation of international law vis-a-
vis municipal law was expressed in Philip Morris, Inc. v.
xxx xxx xxx xxx
Court of Appeals,13 to wit:
SEC. 2. The Philippines renounces war as an instrument of national
xxx Withal, the fact that international law has been made part of the
policy, adopts the generally accepted principles of international law
law of the land does not by any means imply the primacy of
as part of the law of the land and adheres to the policy of peace,
international law over national law in the municipal sphere. Under the
equality, justice, freedom, cooperation, and amity with all nations.
doctrine of incorporation as applied in most countries, rules of
international law are given a standing equal, not superior, to national
xxx xxx xxx xxx legislation.

SEC. 7. The State shall pursue an independent foreign policy. In its This is not exactly helpful in solving the problem at hand since in trying to find
relations with other states the paramount consideration shall be a middle ground, it favors neither one law nor the other, which only leaves
national sovereignty, territorial integrity, national interest, and the the hapless seeker with an unsolved dilemma. Other more traditional
right to self- determination. approaches may offer valuable insights.

From the perspective of public international law, a treaty is favored over

municipal law pursuant to the principle of pacta sunt servanda. Hence,
"[e]very treaty in force is binding upon the parties to it and must be performed
by them in good faith."14 Further, a party to a treaty is not allowed to "invoke
the provisions of its internal law as justification for its failure to perform a
treaty."15
Our Constitution espouses the opposing view. Witness our jurisdiction as I
stated in section 5 of Article VIII:
The Supreme Court shall have the following powers:
xxx xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may provide, final
judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in
question.
xxx xxx xxx xxx
In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always
subject to qualification or amendment by a subsequent law, or that it is
subject to the police power of the State. In Gonzales v. Hechanova,17
xxx As regards the question whether an international agreement may
be invalidated by our courts, suffice it to say that the Constitution of
the Philippines has clearly settled it in the affirmative, by providing, in
Section 2 of Article VIII thereof, that the Supreme Court may not be
deprived "of its jurisdiction to review, revise, reverse, modify, or affirm
on appeal, certiorari, or writ of error as the law or the rules of court
may provide, final judgments and decrees of inferior courts in -( I) All
cases in which the constitutionality or validity of any treaty, law,
ordinance, or executive order or regulation is in question." In other
words, our Constitution authorizes the nullification of a treaty, not
only when it conflicts with the fundamental law, but, also, when it
runs counter to an act of Congress.
The foregoing premises leave us no doubt that US forces are prohibited /
from engaging in an offensive war on Philippine territory.
Yet a nagging question remains: are American troops actively engaged in
combat alongside Filipino soldiers under the guise of an alleged training and
assistance exercise? Contrary to what petitioners would have us do, we
cannot take judicial notice of the events transpiring down south,18 as
reported from the saturation coverage of the media. As a rule, we do not take
cognizance of newspaper or electronic reports per se, not because of any
issue as to their truth, accuracy, or impartiality, but for the simple reason that
facts must be established in accordance with the rules of evidence. As a
result, we cannot accept, in the absence of concrete proof, petitioners'
allegation that the Arroyo government is engaged in "doublespeak" in trying
to pass off as a mere training exercise an offensive effort by foreign troops on
native soil. The petitions invite us to speculate on what is really happening in
Mindanao, to issue I make factual findings on matters well beyond our
immediate perception, and this we are understandably loath to do.
It is all too apparent that the determination thereof involves basically
a question of fact. On this point, we must concur with the Solicitor General
that the present subject matter is not a fit topic for a special civil action
for certiorari. We have held in too many instances that questions of fact are
not entertained in such a remedy. The sole object of the writ is to correct
errors of jurisdiction or grave abuse of discretion: The phrase "grave abuse of
discretion" has a precise meaning in law, denoting abuse of discretion "too
patent and gross as to amount to an evasion of a positive duty, or a virtual
refusal to perform the duty enjoined or act in contemplation of law, or where
the power is exercised in an arbitrary and despotic manner by reason of
passion and personal hostility." 19
In this connection, it will not be amiss to add that the Supreme Court is not a
trier of facts.20
Under the expanded concept of judicial power under the Constitution, courts
are charged with the duty "to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government." 21 From the facts
obtaining, we find that the holding of "Balikatan 02-1" joint military exercise
has not intruded into that penumbra of error that would otherwise call for
correction on our part. In other words, respondents in the case at bar have
not committed grave abuse of discretion amounting to lack or excess of
jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are
hereby DISMISSED without prejudice to the filing of a new petition sufficient
in form and substance in the proper Regional Trial Court.
SO ORDERED.
 The Rome Statute established the International Criminal Court which shall
SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088 have the power to exercise its jurisdiction over persons for the most serious
REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT crimes of international concern xxx and shall be complementary to the
OF THE INTERNATIONAL Present:
CRIMINAL COURT, TASK FORCE national criminal jurisdictions.[1] Its jurisdiction covers the crime of genocide,
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J., crimes against humanity, war crimes and the crime of aggression as defined
FAMILIES OF VICTIMS OF Puno,
INVOLUNTARY DISAPPEARANCES, Panganiban, in the Statute.[2] The Statute was opened for signature by all states in Rome
BIANCA HACINTHA R. ROQUE, Quisumbing,
HARRISON JACOB R. ROQUE, Ynares-Santiago, on July 17, 1998 and had remained open for signature until December 31,
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,
2000 at the United Nations Headquarters in New York. The Philippines
LEAVIDES G. DOMINGO, EDGARDO *Carpio,
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez, signed the Statute on December 28, 2000 through Charge d Affairs Enrique
CELESTE CEMBRANO, LIZA ABIERA, *Corona,
JAIME ARROYO, MARWIL LLASOS, Carpio Morales, A. Manalo of the Philippine Mission to the United Nations. [3] Its provisions,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,
however, require that it be subject to ratification, acceptance or approval of
FAGELA, and ROMEL BAGARES, Azcuna,
Petitioners, Tinga, the signatory states.[4]
Chico-Nazario, and
- versus - Garcia, JJ.
Petitioners filed the instant petition to compel the respondents the Office of
OFFICE OF THE EXECUTIVE
SECRETARY, represented by Promulgated: the Executive Secretary and the Department of Foreign Affairs to transmit the
HON. ALBERTO ROMULO, and the signed text of the treaty to the Senate of the Philippines for ratification.
DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
Respondents. It is the theory of the petitioners that ratification of a treaty, under both
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
domestic law and international law, is a function of the Senate. Hence, it is
DECISION the duty of the executive department to transmit the signed copy of the Rome
PUNO J.: 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

This is a petition for mandamus filed by petitioners to compel the ministerial duty to ratify the Rome Statute under treaty law and customary

Office of the Executive Secretary and the Department of Foreign Affairs to international law. Petitioners invoke the Vienna Convention on the Law of

transmit the signed copy of the Rome Statute of the International Criminal Treaties enjoining the states to refrain from acts which would defeat the

Court to the Senate of the Philippines for its concurrence in accordance with object and purpose of a treaty when they have signed the treaty prior to

Section 21, Article VII of the 1987 Constitution. ratification unless they have made their intention clear not to become parties
to the treaty.[5]
The Office of the Solicitor General, commenting for the respondents,
questioned the standing of the petitioners to file the instant suit. It also
contended that the petition at bar violates the rule on hierarchy of courts. On
the substantive issue raised by petitioners, respondents argue that the
executive department has no duty to transmit the Rome Statute to the
Senate for concurrence.
A petition for mandamus may be filed when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station. [6] We
have held that to be given due course, a petition for mandamus must have
been instituted by a party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes said party from the
enjoyment of a legal right. The petitioner in every case must therefore be an
aggrieved party in the sense that he possesses a clear legal right to be
enforced and a direct interest in the duty or act to be performed. [7] The Court
will exercise its power of judicial review only if the case is brought before it by
a party who has the legal standing to raise the constitutional or legal
question. Legal standing means a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result
of the government act that is being challenged. The term interest is material
interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere
incidental interest.[8]
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his
legal standing to file the suit as member of the Senate; Congresswoman
Loretta Ann Rosales, a member of the House of Representatives and
Chairperson of its Committee on Human Rights; the Philippine Coalition for
the Establishment of the International Criminal Court which is composed of
individuals and corporate entities dedicated to the Philippine ratification of the
Rome Statute; the Task Force Detainees of the Philippines, a juridical entity
with the avowed purpose of promoting the cause of human rights and human
rights victims in the country; the Families of Victims of Involuntary
Disappearances, a juridical entity duly organized and existing pursuant to
Philippine Laws with the avowed purpose of promoting the cause of families
and victims of human rights violations in the country; Bianca Hacintha Roque
and Harrison Jacob Roque, aged two (2) and one (1), respectively, at the
time of filing of the instant petition, and suing under the doctrine of inter-
generational rights enunciated in the case of Oposa vs. Factoran, Jr.;[9] and
a group of fifth year working law students from the University of the
Philippines College of Law who are suing as taxpayers.
The question in standing is whether a party has alleged such a personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions. [10]
We find that among the petitioners, only Senator Pimentel has the legal
standing to file the instant suit. The other petitioners maintain their standing
as advocates and defenders of human rights, and as citizens of the country.
They have not shown, however, that they have sustained or will sustain a
direct injury from the non-transmittal of the signed text of the Rome Statute to
the Senate. Their contention that they will be deprived of their remedies for
the protection and enforcement of their rights does not persuade. The Rome
Statute is intended to complement national criminal laws and courts.
Sufficient remedies are available under our national laws to protect our
citizens against human rights violations and petitioners can always seek
redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that to the extent the
powers of Congress are impaired, so is the power of each member thereof,
since his office confers a right to participate in the exercise of the powers of
that institution.[11] Thus, legislators have the standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in their office
and are allowed to sue to question the validity of any official action which
they claim infringes their prerogatives as legislators. The petition at bar
invokes the power of the Senate to grant or withhold its concurrence to a
treaty entered into by the executive branch, in this case, the Rome Statute.
The petition seeks to order the executive branch to transmit the copy of the
treaty to the Senate to allow it to exercise such authority. Senator Pimentel,
as member of the institution, certainly has the legal standing to assert such
authority of the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether the Executive
Secretary and the Department of Foreign Affairs have a ministerial duty to
transmit to the Senate the copy of the Rome Statute signed by a member of
the Philippine Mission to the United Nations even without the signature of the
President.
We rule in the negative.
In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
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 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 maturity and
growth.[15]
In filing this petition, the petitioners interpret Section 21, Article VII of the
1987 Constitution to mean that the power to ratify treaties belongs to the
Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law, describes the treaty-
making process in this wise:
The usual steps in the treaty-making process are:
negotiation, signature, ratification, and exchange of the
instruments of ratification. The treaty may then be submitted
for registration and publication under the U.N. Charter,
although this step is not essential to the validity of the
agreement as between the parties.
Negotiation may be undertaken directly by the head of state
but he now usually assigns this task to his authorized
representatives. These representatives are provided with
credentials known as full powers, which they exhibit to the
other negotiators at the start of the formal discussions. It is
standard practice for one of the parties to submit a draft of
the proposed treaty which, together with the counter-
proposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted,
depending on the issues involved, and may even collapse in
case the parties are unable to come to an agreement on the
points under consideration.
If and when the negotiators finally decide on the terms of the
treaty, the same is opened for signature. This step is
primarily intended as a means of authenticating the
instrument and for the purpose of symbolizing the good faith
of the parties; but, significantly, it does not indicate the
final consent of the state in cases where ratification of
the treaty is required. The document is ordinarily signed in
accordance with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy which he will
bring home to his own state.
Ratification, which is the next step, is the formal act by which
a state confirms and accepts the provisions of a treaty
concluded by its representatives. The purpose of
ratification is to enable the contracting states to
examine the treaty more closely and to give them an
opportunity to refuse to be bound by it should they find
it inimical to their interests. It is for this reason that most
treaties are made subject to the scrutiny and consent of
a department of the government other than that which
negotiated them.
xxx
The last step in the treaty-making process is
the exchange of the instruments of ratification, which usually
also signifies the effectivity of the treaty unless a different
date has been agreed upon by the parties. Where ratification
is dispensed with and no effectivity clause is embodied in the
treaty, the instrument is deemed effective upon its signature.
[16]
[emphasis supplied]
Petitioners arguments equate the signing of the treaty by the
Philippine representative with ratification. It should be underscored that the
signing of the treaty and the ratification are two separate and distinct steps in
the treaty-making process. As earlier discussed, the signature is primarily
intended as a means of authenticating the instrument and as a symbol of the
good faith of the parties. It is usually performed by the states authorized
representative in the diplomatic mission. Ratification, on the other hand, is
the formal act by which a state confirms and accepts the provisions of a
treaty concluded by its representative. It is generally held to be an executive
act, undertaken by the head of the state or of the government. [17] Thus,
Executive Order No. 459 issued by President Fidel V. Ramos on November
25, 1997 provides the guidelines in the negotiation of international

agreements and its ratification. It mandates that after the treaty has been
signed by the Philippine representative, the same shall be transmitted to the
Department of Foreign Affairs. The Department of Foreign Affairs shall then
prepare the ratification papers and forward the signed copy of the treaty to
the President for ratification. After the President has ratified the treaty, the
Department of Foreign Affairs shall submit the same to the Senate for
concurrence. Upon receipt of the concurrence of the Senate, the Department
of Foreign Affairs shall comply with the provisions of the treaty to render it
effective. Section 7 of Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into
Force of a Treaty or an Executive Agreement. The
domestic requirements for the entry into force of a treaty or
an executive agreement, or any amendment thereto, shall be
as follows:
A. Executive Agreements.
i. All executive agreements shall be
transmitted to the Department of
Foreign Affairs after their signing for
the preparation of the ratification
papers. The transmittal shall include
the highlights of the agreements and
the benefits which will accrue to the
Philippines arising from them.
ii. The Department of Foreign
Affairs, pursuant to the endorsement
by the concerned agency, shall
transmit the agreements to the
President of the Philippines for his
ratification. The original signed
instrument of ratification shall then
be returned to the Department of
Foreign Affairs for appropriate
action.
B. Treaties.
i. All treaties, regardless of their
designation, shall comply with the
requirements provided in sub-
paragraph[s] 1 and 2, item A
(Executive Agreements) of this
Section. In addition, the Department
of Foreign Affairs shall submit the
treaties to the Senate of the
Philippines for concurrence in the
ratification by the President. A
certified true copy of the treaties, in
such numbers as may be required
by the Senate, together with a
certified true copy of the ratification
instrument, shall accompany the
submission of the treaties to the
Senate.
ii. Upon receipt of the concurrence
by the Senate, the Department of
Foreign Affairs shall comply with the
provision of the treaties in effecting
their entry into force.
Petitioners submission that the Philippines is bound under treaty law and
international law to ratify the treaty which it has signed is without basis. The
signature does not signify the final consent of the state to the treaty. It is the
ratification that binds the state to the provisions thereof. In fact, the Rome
Statute itself requires that the signature of the representatives of the states
be subject to ratification, acceptance or approval of the signatory states.
Ratification is the act by which the provisions of a treaty are formally
confirmed and approved by a State. By ratifying a treaty signed in its behalf,
a state expresses its willingness to be bound by the provisions of such treaty.
After the treaty is signed by the states representative, the President, being
accountable to the people, is burdened with the responsibility and the duty to
carefully study the contents of the treaty and ensure that they are not inimical
to the interest of the state and its people. Thus, the President has the
discretion even after the signing of the treaty by the Philippine representative
whether or not to ratify the same. The Vienna Convention on the Law of
Treaties does not contemplate to defeat or even restrain this power of the
head of states. If that were so, the requirement of ratification of treaties would
be pointless and futile. It has been held that a state has no legal or even
moral duty to ratify a treaty which has been signed by its plenipotentiaries.
[18]
There is no legal obligation to ratify a treaty, but it goes without saying that
the refusal must be based on substantial grounds and not on superficial or
whimsical reasons. Otherwise, the other state would be justified in taking
offense.[19]

It should be emphasized that under our Constitution, the power to ratify is

vested in the President, subject to the concurrence of the Senate. The role of
the Senate, however, is limited only to giving or withholding its consent, or
concurrence, to the ratification. [20] Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it. [21] Although the refusal of a state
to ratify a treaty which has been signed in its behalf is a serious step that
should not be taken lightly,[22] such decision is within the competence of the
President alone, which cannot be encroached by this Court via a writ
of mandamus. This Court has no jurisdiction over actions seeking to enjoin
the President in the performance of his official duties. [23] The Court, therefore,
cannot issue the writ of mandamus prayed for by the petitioners as it is
beyond its jurisdiction to compel the executive branch of the government to
transmit the signed text of Rome Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.
SPOUSES RENATO G.R. No. 106064
The present petition illustrates some of the ideological and functional
CONSTANTINO, JR. and
LOURDES CONSTANTINO Present: differences between experts on how to achieve debt relief. However, this
and their minor children being a court of law, not an academic forum or a convention on development
RENATO REDENTOR, DAVIDE, JR., CJ.,
ANNA MARIKA LISSA, PUNO, economics, our resolution has to hinge on the presented legal issues which
NINA ELISSA, and PANGANIBAN, center on the appreciation of the constitutional provision that empowers the
ANNA KARMINA, QUISUMBING,
FREEDOM FROM DEBT YNARES-SANTIAGO, President to contract and guarantee foreign loans. The ultimate choice is
COALITION, and FILOMENO SANDOVAL-GUTIERREZ, between a restrictive reading of the constitutional provision and an
STA. ANA III, CARPIO,
Petitioners , AUSTRIA-MARTINEZ, alimentative application thereof consistent with time-honored principles on
CORONA, executive power and the alter ego doctrine.
CARPIO-MORALES,
CALLEJO, SR.,
- versus - AZCUNA, This Petition for Certiorari, Prohibition and Mandamus assails said
TINGA, contracts which were entered into pursuant to the Philippine Comprehensive
CHICO-NAZARIO, and
GARCIA, JJ. Financing Program for 1992 (Financing Program or Program). It seeks to
HON. JOSE B. CUISIA, enjoin respondents from executing additional debt-relief contracts pursuant
in his capacity as Governor
of the Central Bank, thereto. It also urges the Court to issue an order compelling the Secretary of
HON. RAMON DEL ROSARIO, Justice to institute criminal and administrative cases against
in his capacity as Secretary
of Finance, HON. EMMANUEL V. respondents for acts which circumvent or negate the provisions Art. XII of the
PELAEZ, in his capacity as Constitution.[1]
Philippine Debt Negotiating
Chairman, and the NATIONAL Promulgated:
TREASURER, Parties and Facts
Respondents. October 13, 2005
x-------------------------------------------------------------------x
The petition was filed on 17 July 1992 by petitioners spouses Renato
DECISION Constantino, Jr. and Lourdes Constantino and their minor children, Renato
Redentor, Anna Marika Lissa, Nina Elissa, and Anna Karmina, Filomeno Sta.
TINGA, J.: Ana III, and the Freedom from Debt Coalition, a non-stock, non-profit, non-
government organization that advocates a pro-people and just Philippine
The quagmire that is the foreign debt problem has especially
debt policy.[2] Named respondents were the then Governor of the Bangko
confounded developing nations around the world for decades. It has defied
Sentral ng Pilipinas, the Secretary of Finance, the National Treasurer, and
easy solutions acceptable both to debtor countries and their creditors. It has
the Philippine Debt Negotiation Chairman Emmanuel V. Pelaez. [3] All
also emerged as cause celebre for various political movements and
respondents were members of the Philippine panel tasked to negotiate with
grassroots activists and the wellspring of much scholarly thought and debate.
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
[5]
1991. 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 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%
[23]
of total government borrowings, 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
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 In any event, the discretion on the matter lies not with the courts but
warned, thus: with the executive. Thus, the Program was conceptualized as an offshoot of
the decision made by then
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, President Aquino that the Philippines should recognize its sovereign
especially the United States, may not be in a position to debts[32] despite the controversy that engulfed many debts incurred during the
inflict much damage, but concerted sanctions from
commercial banks, multilateral financial institutions and Marcos era. It is a scheme whereby the Philippines restructured its debts
creditor governments would affect not only our sources of following a negotiated approach instead of a default approach to manage the
credit but also our access to markets for our exports and the
level of development assistance. . . . [T]he country might bleak Philippine debt situation.
face concerted sanctions even if debts were repudiated only
selectively. As a final point, petitioners have no real basis to fret over a possible
The point that must be stressed is that repudiation is waiver of the right to repudiate void contracts. Even assuming that spurious
not an attractive alternative if net payments to creditors in loans had become the subject of debt-relief contracts, respondents
the short and medium-run can be reduced through an
agreement (as opposed to a unilaterally set ceiling on debt unequivocally assert that the Republic did not waive any right to repudiate
service payments) which provides for both rescheduling of void or fraudulently contracted loans, it having incorporated a no-waiver
principal and capitalization of interest, or its equivalent in
new loans, which would make it easier for the country to pay clause in the agreements.[33]
interest.[28]
Substantive Issues
Sovereign default is not new to the Philippine setting. In October
1983, the Philippines declared a moratorium on principal payments on its It is helpful to put the matter in perspective before moving on to the merits.

external debts that eventually The Financing Program extinguished portions of the countrys pre-existing
loans

lasted four years,[29] that virtually closed the countrys access to new foreign
through either debt buyback or bond-conversion. The buyback approach
money[30] and drove investors to leave the Philippine market, resulting in
essentially pre-terminated portions of public debts while the bond-conversion
some devastating consequences.[31] It would appear then that this beguilingly
scheme extinguished public debts through the obtention of a new loan by
attractive and dangerously simplistic solution deserves the utmost
virtue of a sovereign bond issuance, the proceeds of which in turn were used
circumspect cogitation before it is resorted to.
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-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 This theory may even be dismissed in a perfunctory manner since
only to supplement government expenditures but also to provide for the petitioners are merely expecting that the Philippines would opt to restructure
[37] [38] [39]
purchase, redemption, or refunding of any obligation, either direct or the bonds but with the negotiable character of the bonds, would be prevented
guaranteed, of the Philippine Government. 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
Petitioners, however, point out that a supposed difference between
anticipatory cavils.
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 On the Buyback Scheme
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 In their Comment, petitioners assert that the power to pay public
a loan contract for the irrevocable and unpostponable demandability of a debts lies with Congress and was deliberately
[41]
bearer bond. Allegedly, the Constitution prohibits the President from
issuing bonds which are far more onerous than loans.[42]

withheld by the Constitution from the President. [45] It is true that in the balance
This line of thinking is flawed to say the least. The negotiable
of power between the three branches of government, it is Congress that
character of the subject bonds is not mutually exclusive with the Republics
manages the countrys coffers by virtue of its taxing and spending powers.
freedom to negotiate with bondholders for the revision of the terms of the
However, the law-making authority has promulgated a law ordaining an
debt. Moreover, the securities market provides some flexibilityif the
automatic appropriations provision for debt servicing [46] by virtue of which the
Philippines wants to pay in advance, it can buy out its bonds in the market; if
President is empowered to execute debt payments without the need for
interest rates go down but the Philippines does not have money to retire the
further appropriations. Regarding these legislative enactments, this Court
bonds, it can replace the old bonds with new ones; if it defaults on the bonds,
has held, viz:
the bondholders shall organize and bring about a re-negotiation or
settlement.[43] In fact, several countries have restructured their sovereign
Congress deliberates or acts on the budget proposals of the
bonds in view either of President, and Congress in the exercise of its own judgment
and wisdom formulates an appropriation act precisely
following the process established by the Constitution, which
specifies that no money may be paid from the Treasury
except in accordance with an appropriation made by law.
inability and/or unwillingness to pay the indebtedness. [44] Petitioners have not
presented a plausible reason that would preclude the Philippines from acting Debt service is not included in the General Appropriation Act,
since authorization therefor already exists under RA Nos.
in a similar fashion, should it so opt. 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 Petitioners claim that the buyback scheme is neither a guarantee nor
thereof upon due deliberations as part of the whole a loan since its underlying intent is to extinguish debts that are not yet due
obligation program for the year. Upon such approval,
Congress has spoken and cannot be said to have delegated and demandable.[48] Thus, they suggest that contracts entered pursuant to
its wisdom to the Executive, on whose part lies the the buyback scheme are unconstitutional for not being among those
implementation or execution of the legislative wisdom.[47]
contemplated in Sec. 20, Art. VII of the Constitution.

Buyback is a necessary power which springs from the grant of the

Specific legal authority for the buyback of loans is established under Section
foreign borrowing power. Every statute is understood, by implication, to
2 of Republic Act (R.A.) No. 240, viz:
contain all such provisions as may be necessary to effectuate its object and
Sec. 2. The Secretary of Finance shall cause to purpose, or to make effective rights, powers, privileges or jurisdiction which it
be paid out of any moneys in the National grants, including all such collateral and subsidiary consequences as may be
Treasury not otherwise appropriated, or from any
sinking funds provided for the purpose by law, fairly and logically inferred from its terms.[49] The President is not empowered
any interest falling due, or accruing, on any to borrow money from foreign banks and governments on the credit of the
portion of the public debt authorized by law. He
shall also cause to be paid out of any such Republic only to be left bereft of authority to implement the payment despite
money, or from any such sinking funds the appropriations therefor.
principal amount of any obligations which have
matured, or which have been called for redemption
or for which redemption has been demanded in Even petitioners concede that [t]he Constitution, as a rule, does not
accordance with terms prescribed by him prior to enumeratelet alone enumerate allthe acts which the President (or any other
date of issue: Provided, however, That he may, if he
so chooses and if the holder is willing, exchange any public officer) may not
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 do,[50] and [t]he fact that the Constitution does not explicitly bar the President
issued at a discount he shall pay the face value at from exercising a power does not mean that he or she does not have that
maturity; or, if redeemed prior to maturity, such
power.[51] It is inescapable from the standpoint of reason and necessity
portion of the face value as is prescribed by the
terms and conditions under which such that the authority to contract foreign loans and guarantees without restrictions
obligations were originally issued. (Emphasis
on payment or manner thereof coupled with the availability of the
supplied.)
corresponding appropriations, must include the power to effect payments or
to make payments unavailing by either restructuring the loans or even
The afore-quoted provisions of law specifically allow the President to pre-
refusing to make any payment altogether.
terminate debts without further action from Congress.
 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 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 exclusive, but there must be a showing that the executive power in question
made by then President Aquino that sovereign debts have to be respected is of similar gravitas and exceptional import.
and the concomitant reality that the Philippines did not have enough funds to
We cannot conclude that the power of the President to contract or
pay the debts. Inevitably, it fell upon the Secretary of Finance, as the alter
guarantee foreign debts falls within the same exceptional class. Indubitably,
ego of the President regarding the sound and efficient management of the
the decision to contract or guarantee foreign debts is of vital public interest,
financial resources of the Government,[57] to formulate a scheme for the
but only
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 akin to any contractual obligation undertaken by the sovereign, which arises
clear: not from any extraordinary incident, but from the established functions of
governance.
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 Another important qualification must be made. The Secretary of
be validated by subsequent approval or ratification by the
Finance or any designated alter ego of the President is bound to secure the
President. There are certain constitutional powers and
prerogatives of the Chief Executive of the Nation which must latters prior consent to or subsequent ratification of his acts. In the matter of
be exercised by him in person and no amount of approval or contracting or guaranteeing foreign loans, the repudiation by the President of
ratification will validate the exercise of any of those powers
by any other person. Such, for instance, in his power to the very acts performed in this regard by the alter ego will definitely have
suspend the writ of habeas corpus and proclaim martial law binding effect. Had petitioners herein succeeded in demonstrating that the
(PAR. 3, SEC. 11, Art. VII) and the exercise by him of the
benign prerogative of mercy (par. 6, sec. 11, idem). [58] 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
These distinctions hold true to this day. There are certain presidential powers
Program without prior authorization of the President or that the terms of the
which arise out of exceptional circumstances, and if exercised, would involve
contract were agreed upon without the Presidents authorization. Congruent
the suspension of fundamental freedoms, or at least call for the
with the avowed preference of then President Aquino to honor and
supersedence of executive prerogatives over those exercised by co-equal
restructure existing foreign debts, the lack of showing that she
branches of government. The declaration of martial law, the suspension of
countermanded the acts of respondents leads us to conclude that said acts
the writ of habeas corpus, and the exercise of the pardoning power
carried presidential approval.
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

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]
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

While the Court refused to uphold the broad construction of the grant
of the Secretary of Finance, be nullified as being in violation of a restrictive
of power as preferred by the DTI Secretary, it nonetheless tacitly
constitutional interpretation, petitioners in effect would have this Court
acknowledged that Congress could designate the DTI Secretary, in his
declare R.A. No. 245 unconstitutional. We will not strike
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
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.
[67]
Respondents cite the following in support of the propriety of their acts:
Department of Finance study showing that as a result of the implementation
of voluntary debt reductions schemes, the countrys debt stock was reduced
by U.S. $4.4 billion as of December 1991; [68] (2) revelations made by
independent individuals made in a hearing before the Senate Committee on
Economic Affairs indicating that the assailed agreements would bring about
substantial benefits to the country; [69] and (3) the Joint Legislative-Executive
Foreign Debt Councils endorsement of the approval of the financing package
containing the debt-
relief agreements and issuance of a Motion to Urge the Philippine Debt
Negotiating Panel to continue with the negotiation on the aforesaid package.
[70]
Even with these justifications, respondents aver that their acts are within the
arena of political questions which, based on the doctrine of separation of
powers,[71] the judiciary must leave without interference lest the courts
substitute their judgment for that of the official concerned and decide a
matter which by its nature or law is for the latter alone to decide. [72]
On the other hand, in furtherance of their argument on respondents violation
of constitutional policies, petitioners cite an article of Jude Esguerra, The
1992 Buyback and Securitization Agreement with Philippine Commercial
Bank Creditors,[73] in illustrating a best-case scenario in entering the subject
debt-relief agreements. The computation results in a yield of $218.99 million,
rather
than the $2,041.00 million claimed by the debt negotiators. [74] On the other
hand, the worst-case scenario allegedly is that a net amount of $1.638 million
(1) a 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 Note must be taken that from these citations, petitioners submit that there
marked positive results and towards achieving the constitutional policies is possibly a better way to go about debt rescheduling and, on that basis,
which petitioners so hastily declare as having been violated by respondents. insist that the acts of respondents must be struck down. These are rather
We recognize that as with other schemes dependent on volatile market and tenuous grounds to condemn the subject agreements as violative of
economic structures, the contracts entered into by respondents may possibly constitutional principles.
have a net outflow and therefore negative result. However, even petitioners
call this latter event the worst-case scenario. Plans are seldom foolproof. To Conclusion
ask the Court to strike down debt-relief contracts, which, according to
independent third party evaluations using historically-suggested rates would The raison d etre of the Financing Program is to manage debts incurred by
[76]
result in substantial debt-relief, based merely on the possibility of the Philippines in a manner that will lessen the burden on the Filipino
petitioners worst-case scenario projection, hardly seems reasonable. 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
Moreover, the policies set by the Constitution as litanized by petitioners are
managers as affirmed by third party empirical analysis.
not a panacea that can annul every governmental act sought to be struck
down. The gist of petitioners arguments on violation of constitutional policies
That the means employed to achieve the goal of debt-relief do not sit
and grave abuse of discretion boils down to their allegation that the debt-
well with petitioners is beyond the power of this Court to remedy. The
relief agreements entered into by respondents do not deliver the kind of debt-
exercise of the power of judicial review is merely to checknot supplantthe
relief that petitioners would want. Petitioners cite the aforementioned article
Executive, or to simply ascertain whether he has gone beyond the
in stating that that the agreement achieves little that cannot be gained
constitutional limits of his jurisdiction but not to exercise the power vested in
through less complicated means like postponing (rescheduling) principal
him or to determine the wisdom of his act. [78] In cases where the main
payments,[77] thus:
purpose is to nullify governmental acts whether as unconstitutional or done
[T]he price of success in putting together this debt-relief with grave abuse of discretion, there is a strong presumption in favor of the
package (indicates) the possibility that a simple rescheduling validity of the assailed acts. The heavy onus is in on petitioners to overcome
agreement may well turn out to be less expensive than this
comprehensive debt-relief package. This means that in the the presumption of regularity.
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 We find that petitioners have not sufficiently established any basis for
result. the Court to declare the acts of respondents as unconstitutional.
G.R. No. 173034 October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE
PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER
SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON,
ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J.
LOZADA, AND DR. NEMESIO T. GAKO,respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best
nourishment for an infant is mother's milk. There is nothing greater than for a
mother to nurture her beloved child straight from her bosom. The ideal is, of
course, for each and every Filipino child to enjoy the unequaled benefits of
breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of
Court, seeking to nullify Administrative Order (A.O.) No. 2006-0012
entitled, Revised Implementing Rules and Regulations of Executive
Order No. 51, Otherwise Known as The "Milk Code," Relevant
International Agreements, Penalizing Violations Thereof, and for Other
Purposes (RIRR). Petitioner posits that the RIRR is not valid as it contains
provisions that are not constitutional and go beyond the law it is supposed to
implement.
Named as respondents are the Health Secretary, Undersecretaries, and
Assistant Secretaries of the Department of Health (DOH). For purposes of
herein petition, the DOH is deemed impleaded as a co-respondent since
respondents issued the questioned RIRR in their capacity as officials of said
executive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon
Aquino on October 28, 1986 by virtue of the legislative powers granted to the
president under the Freedom Constitution. One of the preambular clauses of
the Milk Code states that the law seeks to give effect to Article 11 2 of the
International Code of Marketing of Breastmilk Substitutes (ICMBS), a code
adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006,
the WHA adopted several Resolutions to the effect that breastfeeding should
be supported, promoted and protected, hence, it should be ensured that
nutrition and health claims are not permitted for breastmilk substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of
the Child. Article 24 of said instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality, and ensure that
all segments of society, specially parents and children, are informed of the
advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take
effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition
for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the
DOH acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and in violation of the
provisions of the Constitution in promulgating the RIRR. 3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining
respondents from implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral
arguments on June 19, 2007. The Court issued an Advisory (Guidance for
Oral Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised
Implementing Rules and Regulations (RIRR) issued by the
Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive
Order No. 51 (Milk Code);
2.2 Whether pertinent international agreements1 entered into by the
Philippines are part of the law of the land and may be implemented
by the DOH through the RIRR; If in the affirmative, whether the RIRR
is in accord with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate
the due process clause and are in restraint of trade; and
 2.4 Whether Section 13 of the RIRR on Total Effect provides
sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the
WHO and Unicef "2002 Global Strategy on Infant and Young Child
Feeding;" and (3) various World Health Assembly (WHA)
Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the
real party-in-interest, the Court adopts the view enunciated in Executive
Secretary v. Court of Appeals,4 to wit:
The modern view is that an association has standing to complain of
injuries to its members. This view fuses the legal identity of an
association with that of its members. An association has standing
to file suit for its workers despite its lack of direct interest if its
members are affected by the action. An organization has
standing to assert the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent
was organized x x x to act as the representative of any individual,
company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein.
The respondent is, thus, the appropriate party to assert the
rights of its members, because it and its members are in every
practical sense identical. x x x The respondent [association] is
but the medium through which its individual members seek to
make more effective the expression of their voices and the
redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v.
Yuipco,6 where the Court ruled that an association has the legal personality
to represent its members because the results of the case will affect their vital
interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar
provision just like in Executive Secretary, that the association is formed "to
represent directly or through approved representatives the pharmaceutical
and health care industry before the Philippine Government and any of its
agencies, the medical professions and the general public." 8 Thus, as an
organization, petitioner definitely has an interest in fulfilling its avowed
purpose of representing members who are part of the pharmaceutical and
health care industry. Petitioner is duly authorized 9 to take the appropriate
course of action to bring to the attention of government agencies and the
courts any grievance suffered by its members which are directly affected by
the RIRR. Petitioner, which is mandated by its Amended Articles of
Incorporation to represent the entire industry, would be remiss in its duties if
it fails to act on governmental action that would affect any of its industry
members, no matter how few or numerous they are. Hence, petitioner, whose
legal identity is deemed fused with its members, should be considered as a
real party-in-interest which stands to be benefited or injured by any judgment
in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted
to by respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the
Milk Code, thereby amending and expanding the coverage of said law. The
defense of the DOH is that the RIRR implements not only the Milk Code but
also various international instruments10 regarding infant and young child
nutrition. It is respondents' position that said international instruments are
deemed part of the law of the land and therefore the DOH may implement
them through the RIRR.
The Court notes that the following international instruments invoked by
respondents, namely: (1) The United Nations Convention on the Rights of the
Child; (2) The International Covenant on Economic, Social and Cultural
Rights; and (3) the Convention on the Elimination of All Forms of
Discrimination Against Women, only provide in general terms that steps must
be taken by State Parties to diminish infant and child mortality and inform
society of the advantages of breastfeeding, ensure the health and well-being
of families, and ensure that women are provided with services and nutrition in
connection with pregnancy and lactation. Said instruments do not contain
specific provisions regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding
breastmilk substitutes are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere
of domestic law either by transformation or incorporation.11 The
transformation method requires that an international law be transformed into
a domestic law through a constitutional mechanism such as local legislation.
The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law. 12
Treaties become part of the law of the land through transformation pursuant
to Article VII, Section 21 of the Constitution which provides that "[n]o treaty or
international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate." Thus, treaties or
conventional international law must go through a process prescribed by the
Constitution for it to be transformed into municipal law that can be applied to
domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been
concurred in by at least two-thirds of all members of the Senate as required
under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been
transformed into domestic law through local legislation, the Milk Code.
Consequently, it is the Milk Code that has the force and effect of law in this
jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well
to emphasize at this point that the Code did not adopt the provision in
the ICMBS absolutely prohibiting advertising or other forms of promotion
to the general public of products within the scope of the ICMBS. Instead, the
Milk Code expressly provides that advertising, promotion, or other
marketing materials may be allowed if such materials are duly
authorized and approved by the Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity
with all nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations. The classical
formulation in international law sees those customary rules accepted
as binding result from the combination [of] two elements: the
established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory
by the existence of a rule of law requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general
or customary international law which are binding on all states, 17 i.e.,
renunciation of war as an instrument of national policy, the principle of
sovereign immunity,18 a person's right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The concept of
"generally accepted principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law"
as a primary source of international law because they have the "character
of jus rationale" and are "valid through all kinds of human
societies."(Judge Tanaka in his dissenting opinion in the 1966 South West
Africa Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part
of international law because they are "basic to legal systems generally"
and hence part of the jus gentium. These principles, he believes, are
established by a process of reasoning based on the common identity of all
legal systems. If there should be doubt or disagreement, one must look to
state practice and determine whether the municipal law principle provides a
just and acceptable solution. x x x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and
consistent practice of states followed by them from a sense of legal
obligation [opinio juris]." (Restatement) This statement contains
the two basic elements of custom: the material factor, that is,
how states behave, and the psychological or subjective factor,
that is, why they behave the way they do.
xxxx
 The initial factor for determining the existence of custom is the actual
behavior of states. This includes several elements: duration,
consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important
is the consistency and the generality of the practice. x x x
xxxx
Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way they
do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of
behavior is obligatory, is what makes practice an international
rule. Without it, practice is not law.22(Underscoring and Emphasis
supplied)
Clearly, customary international law is deemed incorporated into our
domestic system.23
WHA Resolutions have not been embodied in any local legislation. Have they
attained the status of customary law and should they then be deemed
incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized
agencies allied with the United Nations (UN) by virtue of Article 57, 24 in
relation to Article 6325 of the UN Charter. Under the 1946 WHO Constitution,
it is the WHA which determines the policies of the WHO,26 and has the power
to adopt regulations concerning "advertising and labeling of biological,
pharmaceutical and similar products moving in international commerce," 27and
to "make recommendations to members with respect to any matter within the
competence of the Organization."28 The legal effect of its regulations, as
opposed to recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted by the
WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt
conventions or agreements with respect to any matter within the
competence of the Organization. A two-thirds vote of the Health
Assembly shall be required for the adoption of such conventions or
agreements, which shall come into force for each Member when
accepted by it in accordance with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen
months after the adoption by the Health Assembly of a convention or
agreement, take action relative to the acceptance of such
convention or agreement. Each Member shall notify the Director-
General of the action taken, and if it does not accept such
convention or agreement within the time limit, it will furnish a
statement of the reasons for non-acceptance. In case of acceptance,
each Member agrees to make an annual report to the Director-
General in accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt
regulations concerning: (a) sanitary and quarantine requirements
and other procedures designed to prevent the international spread of
disease; (b) nomenclatures with respect to diseases, causes of
death and public health practices; (c) standards with respect to
diagnostic procedures for international use; (d) standards with
respect to the safety, purity and potency of biological, pharmaceutical
and similar products moving in international commerce; (e)
advertising and labeling of biological, pharmaceutical and similar
products moving in international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come
into force for all Members after due notice has been given of their
adoption by the Health Assembly except for such Members as may
notify the Director-General of rejection or reservations within the
period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do
not come into force for members, in the same way that conventions or
agreements under Article 19 and regulations under Article 21 come into
force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter within the
competence of the Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the
recommendation would come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they "carry moral and
political weight, as they constitute the judgment on a health issue of the
collective membership of the highest international body in the field of
health."29 Even the ICMBS itself was adopted as a mere recommendation, as
WHA Resolution No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense
of Article 23 of the Constitution, the International Code of
Marketing of Breastmilk Substitutes annexed to the present
resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health
Organization at its sixty-seventh session, considered the fourth draft
of the code, endorsed it, and unanimously recommended to the
Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation
rather than a regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in
Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with
respect to recommendations made to it by the Organization, and with
respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA
Resolutions urging member states to implement the ICMBS are merely
recommendatory and legally non-binding. Thus, unlike what has been
done with the ICMBS whereby the legislature enacted most of the
provisions into law which is the Milk Code, the subsequent WHA
Resolutions,30 specifically providing for exclusive breastfeeding from 0-
6 months, continued breastfeeding up to 24 months, and absolutely
prohibiting advertisements and promotions of breastmilk substitutes,
have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-
binding norms, principles and practices that influence state behavior. 31
"Soft law" does not fall into any of the categories of international law set forth
in Article 38, Chapter III of the 1946 Statute of the International Court of
Justice.32 It is, however, an expression of non-binding norms, principles, and
practices that influence state behavior. 33 Certain declarations and resolutions
of the UN General Assembly fall under this category. 34 The most notable is
the UN Declaration of Human Rights, which this Court has enforced in
various cases, specifically, Government of Hongkong Special Administrative
Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v.
Rañada37 and Shangri-la International Hotel Management, Ltd. v. Developers
Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency
attached to the UN with the mandate to promote and protect intellectual
property worldwide, has resorted to soft law as a rapid means of norm
creation, in order "to reflect and respond to the changing needs and
demands of its constituents."39 Other international organizations which have
resorted to soft law include the International Labor Organization and the
Food and Agriculture Organization (in the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the
Severe Acute Respiratory Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international
law binding on WHO member states, it provides an excellent
example of the power of "soft law" in international relations.
International lawyers typically distinguish binding rules of
international law-"hard law"-from non-binding norms,
principles, and practices that influence state behavior-"soft
law." WHO has during its existence generated many soft law
norms, creating a "soft law regime" in international governance
for public health.
The "soft law" SARS and IHR Resolutions represent significant steps
in laying the political groundwork for improved international
cooperation on infectious diseases. These resolutions clearly define
WHO member states' normative duty to cooperate fully with other
countries and with WHO in connection with infectious disease
surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of
the SARS epidemic, the duty is powerful politically for two
reasons. First, the SARS outbreak has taught the lesson that
participating in, and enhancing, international cooperation on
infectious disease controls is in a country's self-interest x x x if this
warning is heeded, the "soft law" in the SARS and IHR Resolution
could inform the development of general and consistent state
practice on infectious disease surveillance and outbreak response,
perhaps crystallizing eventually into customary international law on
infectious disease prevention and control.41
In the Philippines, the executive department implemented certain measures
recommended by WHO to address the outbreaks of SARS and Avian flu by
issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280
on February 2, 2004, delegating to various departments broad powers to
close down schools/establishments, conduct health surveillance and
monitoring, and ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the
duty of a state to implement the IHR Resolution was still considered not
binding or enforceable, although said resolutions had great political influence.
As previously discussed, for an international rule to be considered as
customary law, it must be established that such rule is being followed by
states because they consider it obligatory to comply with such rules (opinio
juris). Respondents have not presented any evidence to prove that the WHA
Resolutions, although signed by most of the member states, were in fact
enforced or practiced by at least a majority of the member states; neither
have respondents proven that any compliance by member states with said
WHA Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of pertinent WHA
Resolutions are customary international law that may be deemed part of the
law of the land.
Consequently, legislation is necessary to transform the provisions of the
WHA Resolutions into domestic law. The provisions of the WHA
Resolutions cannot be considered as part of the law of the land that
can be implemented by executive agencies without the need of a law
enacted by the legislature.
Second, the Court will determine whether the DOH may implement the
provisions of the WHA Resolutions by virtue of its powers and functions
under the Revised Administrative Code even in the absence of a domestic
law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987
provides that the DOH shall define the national health policy and
implement a national health plan within the framework of the government's
general policies and plans, and issue orders and regulations concerning
the implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and
other forms of promotion of breastmilk substitutes provided in some WHA
Resolutions has been adopted as part of the national health policy.
Respondents submit that the national policy on infant and young child
feeding is embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically,
the Administrative Order declared the following policy guidelines: (1) ideal
breastfeeding practices, such as early initiation of breastfeeding, exclusive
breastfeeding for the first six months, extended breastfeeding up to two years
and beyond; (2) appropriate complementary feeding, which is to start at age
six months; (3) micronutrient supplementation; (4) universal salt iodization;
(5) the exercise of other feeding options; and (6) feeding in exceptionally
difficult circumstances. Indeed, the primacy of breastfeeding for children is
emphasized as a national health policy. However, nowhere in A.O. No.
2005-0014 is it declared that as part of such health policy, the
advertisement or promotion of breastmilk substitutes should be
absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding
cannot automatically be equated with a total ban on advertising for breastmilk
substitutes.
In view of the enactment of the Milk Code which does not contain a total ban
on the advertising and promotion of breastmilk substitutes, but instead,
specifically creates an IAC which will regulate said advertising and
promotion, it follows that a total ban policy could be implemented
only pursuant to a law amending the Milk Code passed by the
constitutionally authorized branch of government, the legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent
WHA Resolutions, can be validly implemented by the DOH through the
subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are
in accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code,
petitioner alleges the following:
1. The Milk Code limits its coverage to children 0-12 months old, but
the RIRR extended its coverage to "young children" or those from
ages two years old and beyond:
MILK CODE RIRR
WHEREAS, in order to ensure that safe and Section 2. Purpos
adequate nutrition for infants is provided, there is Regulations are her
a need to protect and promote breastfeeding and the provision of safe
to inform the public about the proper use of infants and young c
 breastmilk substitutes and supplements and protection and support of breastfeeding
materials,
and bywhether written, audio or visual, upon:
related products through adequate, consistent ensuring the proper use of breastmilk
forsubstitutes,
products within the scope of this Code shall be
and objective information and appropriate breastmilk supplements and relatedprinted,
products
published, distributed, exhibited and xxxx
regulation of the marketing and distribution of the when these are medically indicatedbroadcast
and only unless such materials are duly
said substitutes, supplements and related when necessary, on the basis of adequate
authorized and approved by an inter-agency f. Advertising, prom
products; information and through appropriatecommittee
marketingcreated herein pursuant to the infant formula, brea
and distribution. applicable standards provided for in this Code. related products are
SECTION 4(e). "Infant" means a person falling
within the age bracket of 0-12 months. Section 5(ff). "Young Child" means a person
from the age of Section 11. Prohib
to the age of three (3) years (36 months). promotions, sponso
and activities for bre
intended for infants
2. The Milk Code recognizes that infant formula may be a proper and twenty-four (24) mo
possible substitute for breastmilk in certain instances; but the RIRR because they tend
provides "exclusive breastfeeding for infants from 0-6 months" and messages or impre
declares that "there is no substitute nor replacement for breastmilk and brea
breastmilk": exaggerate breastm
replacements, as w
covered within the s
MILK CODE RIRR
WHEREAS, in order to ensure that safe and Section 4. Declaration of Principles –
Section 13. "Total
adequate nutrition for infants is provided, there is following are the underlying principles from which
products within the
a need to protect and promote breastfeeding and the revised rules and regulations are premised
objective and shoul
to inform the public about the proper use of upon:
product appear to b
breastmilk substitutes and supplements and
breastmilk or breas
related products through adequate, consistent a. Exclusive breastfeeding is for infants concept. It must no
and objective information and appropriate six (6) months. breastmilk or breas
regulation of the marketing and distribution of the
should not directly o
said substitutes, supplements and related b. There is no substitute or replacement buying their produc
products; breastmilk. individuals, or resul
intelligence, ability,
3. The Milk Code only regulates and does not impose unreasonable bring better health t
exaggerated and un
requirements for advertising and promotion; RIRR imposes an
absolute ban on such activities for breastmilk substitutes intended
Section 15. Conten
for infants from 0-24 months old or beyond, and forbids the use of following shall not b
health and nutritional claims. Section 13 of the RIRR, which provides promotional and ma
for a "total effect" in the promotion of products within the scope of
the Code, is vague: a. Texts, pictures, il
which discourage o
MILK CODE RIRR benefits or superior
SECTION 6. The General Public and Mothers. Section 4. Declaration of Principles – idealize the use of b
– following are the underlying principles from which supplements. In this
the revised rules and regulations are premised babies and children
(a) No advertising, promotion or other marketing fathers, siblings, gra
 caregivers (or yayas) shall be used (iii)
in any
a statement that the product shall be used (e) Instructions for a
advertisements for infant formula and onlybreastmilk
on the advice of a health worker as to the a warning against th
supplements; need for its use and the proper methods of use; inappropriate prepa
and
b. The term "humanized," "maternalized," "close (f) The health hazar
to mother's milk" or similar words in(iv)
describing
instructions for appropriate preparation, and a improper use of infa
breastmilk substitutes or milk supplements;
warning against the health hazards of products including i
inappropriate preparation. infant formula may
c. Pictures or texts that idealize the use of infant microorganisms an
and milk formula. appropriately.

5. The Milk
Section 16. All health and nutrition Code
claims forallows dissemination of information on infant
products within the scope offormula
the Code are
to health professionals; the RIRR totally prohibits such
absolutely prohibited. For this purpose,
activity: any
phrase or words that connotes to increase
emotional, intellectual abilities of the infant and
young child and other like phrases shallMILKnot CODEbe RIRR
allowed. SECTION 7. Health Care System. – Section 22. No ma
representatives of p
(b) No facility of the health care system shall be shall be allowed to
4. The RIRR imposes additional labeling requirements not found in
used for the purpose of promoting infant formula activity on breastfee
the Milk Code: or other products within the scope of this and production of In
Code. This Code does not, however, preclude the Communication (IE
MILK CODE RIRR dissemination of information to health breastfeeding, hold
SECTION 10. Containers/Label. – Section 26. Content – professionals as provided in Section 8(b). speakers in classes
contain such message, in both Filipino and children activities an
English languages, and which message cannot venues to market th
(a) Containers and/or labels shall be designed to SECTION 8. Health Workers. -
be readily separated therefrom, relative the names.
provide the necessary information about the
appropriate use of the products, and in such a following points: (b) Information provided by manufacturers and SECTION 16. All he
way as not to discourage breastfeeding. distributors to health professionals regarding products within the
(a) The words or phrase "Important products
Notice" orwithin the scope of this Code shall be absolutely prohibite
(b) Each container shall have a clear, "Government Warning" or their equivalent;
restricted to scientific and factual matters and phrase or words tha
conspicuous and easily readable and such information shall not imply or create a belief emotional, intellectu
understandable message in Pilipino or English (b) A statement of the superiority of that bottle-feeding is equivalent or superior to young child and oth
printed on it, or on a label, which message can breastfeeding; breastfeeding. It shall also include the information allowed.
not readily become separated from it, and which specified in Section 5(b).
shall include the following points: (c) A statement that there is no substitute for
breastmilk; 6. The Milk Code permits milk manufacturers and distributors to
(i) the words "Important Notice" or their extend assistance in research and continuing education of health
equivalent; (d) A statement that the product shall be used
professionals; RIRR absolutely forbids the same.
only on the advice of a health worker as to the
(ii) a statement of the superiority of breastfeeding; need for its use and the proper methods of use;
MILK CODE RIRR
SECTION 8. Health Workers – Section 4. Declara
 (e) Manufacturers and distributors of products Donations of produc
within the scope of this Code may assist in the not otherwise falling
research, scholarships and continuing education, The following are the underlying principles from or these Rules, give
of health professionals, in accordance with the which the revised rules and regulations are their agents, repres
rules and regulations promulgated by the Ministry premised upon: in cash, may only b
of Health. Agency Committee
whether such donat
i. Milk companies, and their
representatives,
policymaking body or entity8.in The RIRRtoprovides
relation the for administrative sanctions not imposed by
advancement of breasfeeding.the Milk Code.

SECTION 22. No manufacturer, distributor,

MILK CODEor RIRR
representatives of products covered by the Code Section 46. Admin
shall be allowed to conduct or be involved in following administra
activity on breastfeeding promotion, education imposed upon any p
and production of Information, Education and found to have violat
Communication (IEC) materials on and its implementin
breastfeeding, holding of or participating as
speakers in classes or seminars for women and
children activities a) 1st violation – Wa
venues to market their brands or company
names. b) 2nd violation – Ad
of Ten Thousand (P
SECTION 32. Primary Responsibility of Health (P50,000.00) Pesos
Workers - It is the primary responsibility of the and extent of the vio
health workers to promote, protect and support the offending produ
breastfeeding and appropriate infant and young
child feeding. Part of this responsibility is to c) 3rd violation – Adm
continuously update their knowledge and skills on of Sixty Thousand (
breastfeeding. No assistance, support, logistics Fifty Thousand (P15
or training from milk companies shall be on the gravity and e
permitted. addition thereto, the
product, and suspe
Product Registratio
7. The Milk Code regulates the giving of donations; RIRR absolutely
prohibits it. d) 4th violation –Adm
of Two Hundred Tho
MILK CODE RIRR Hundred (P500,000
SECTION 6. The General Public and Mothers. Section 51. Donations Within the Scope of depending on the g
– This Code - Donations of products, materials, violation; and in add
defined and covered under the Milk Code and product, revocation
(f) Nothing herein contained shall prevent these implementing rules and regulations, shall the License to Oper
donations from manufacturers and distributors of be strictly prohibited.
products within the scope of this Code upon e) 5th and succeedin
request by or with the approval of the Ministry of Section 52. Other Donations By Milk Administrative Fine
Health. Companies Not Covered by this Code.
 Section 4(h) of the Milk Code defines infant formula as "a breastmilk
substitute
(P1,000,000.00) Pesos, x x xof
the recall tothe
satisfy the normal nutritional requirements of infants up to
offending
product, cancellationbetween four torevocation
of the CPR, six months of of age, and adapted to their physiological
characteristics";
the License to Operate (LTO) of the while
companyunder Section 4(b), bottle-fed complementary food
concerned, including refers to "any food,
the blacklisting of whether
the manufactured or locally prepared, suitable as a
complement to
company to be furnished the Department ofbreastmilk or infant formula, when either becomes insufficient
to satisfy the
Budget and Management (DBM) and the nutritional requirements of the infant." An infant under Section
4(e) is a person
Department of Trade and Industry (DTI); falling within the age bracket 0-12 months. It is the
nourishment of this group of infants or children aged 0-12 months that is
sought to be promoted and protected by the Milk Code.
f) An additional penalty of Two Thou-sand Five
Hundred (P2,500.00) Pesos per day shall be
made for every dayBut the there is another
violation target
continues group. Breastmilk substitute is defined under
after
Section 4(a) as "any
having received the order from the IAC or other food being marketed or otherwise presented as a partial
or total replacement
such appropriate body, notifying and penalizing for breastmilk, whether or not suitable for that
purpose."
the company for the infraction. This section conspicuously lacks reference to any particular
age-group of children. Hence, the provision of the Milk Code cannot be
considered exclusive for children aged 0-12 months. In other words,
For purposes of determining whether or not there
breastmilk substitutes may also be intended for young children more than 12
is "repeated" violation, each product violation
months of age. Therefore, by regulating breastmilk substitutes, the Milk Code
belonging or owned by a company, including
also intends to protect and promote the nourishment of children more than 12
those of their subsidiaries, are deemed to be
months old.
violations of the concerned milk company and
shall not be based on the specific violating
product alone. Evidently, as long as what is being marketed falls within the scope of the Milk
Code as provided in Section 3, then it can be subject to regulation pursuant
to said law, even if the product is to be used by children aged over 12
9. The RIRR provides for repeal of existing laws to the contrary. months.

The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited
only to children 0-12 months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code – The Code applies to the
marketing, and practices related thereto, of the following products:
breastmilk substitutes, including infant formula; other milk products,
foods and beverages, including bottle-fed complementary foods,
when marketed or otherwise represented to be suitable, with or
without modification, for use as a partial or total replacement of
breastmilk; feeding bottles and teats. It also applies to their quality
and availability, and to information concerning their use.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the
RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code,
does not recognize that breastmilk substitutes may be a proper and possible
substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be
considered and construed together. As held in De Luna v. Pascual,44 "[t]he
particular words, clauses and phrases in the Rule should not be studied as
detached and isolated expressions, but the whole and every part thereof
must be considered in fixing the meaning of any of its parts and in order to
produce a harmonious whole."

Clearly, the coverage of the Milk Code is not dependent on the age of the Section 7 of the RIRR provides that "when medically indicated and only when
child but on the kind of product being marketed to the public. The law treats necessary, the use of breastmilk substitutes is proper if based on
infant formula, bottle-fed complementary food, and breastmilk substitute as complete and updated information." Section 8 of the RIRR also states that
separate and distinct product categories.
information and educational materials should include information on the
proper use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain
cases, the use of breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 3 45 and 446 together as
they are interlinked with each other.
To resolve the question of whether the labeling requirements and advertising
regulations under the RIRR are valid, it is important to deal first with the
nature, purpose, and depth of the regulatory powers of the DOH, as defined
in general under the 1987 Administrative Code,47 and as delegated in
particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain
other administrative agencies) in exercise of police powers delegated to it.
The sheer span of jurisprudence on that matter precludes the need to further
discuss it..48 However, health information, particularly advertising materials on
apparently non-toxic products like breastmilk substitutes and supplements, is
a relatively new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine
Islands,50 health information was already within the ambit of the regulatory
powers of the predecessor of DOH.51 Section 938 thereof charged it with the
duty to protect the health of the people, and vested it with such powers as
"(g) the dissemination of hygienic information among the people
and especially the inculcation of knowledge as to the proper care of
infants and the methods of preventing and combating dangerous
communicable diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH
to carry out the state policy pronounced under Section 15, Article II of the
1987 Constitution, which is "to protect and promote the right to health of the
people and instill health consciousness among them."52 To that end, it was
granted under Section 3 of the Administrative Code the power to "(6)
propagate health information and educate the population on important
health, medical and environmental matters which have health implications." 53
When it comes to information regarding nutrition of infants and young
children, however, the Milk Code specifically delegated to the Ministry of
Health (hereinafter referred to as DOH) the power to ensure that there is
adequate, consistent and objective information on breastfeeding and use of
breastmilk substitutes, supplements and related products; and the power
to control such information. These are expressly provided for in Sections 12
and 5(a), to wit:
SECTION 12. Implementation and Monitoring –
xxxx
(b) The Ministry of Health shall be principally responsible for the
implementation and enforcement of the provisions of this Code. For
this purpose, the Ministry of Health shall have the following powers
and functions:
(1) To promulgate such rules and regulations as are
necessary or proper for the implementation of this Code and
the accomplishment of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be
necessary for or incidental to the attainment of the purposes
and objectives of this Code.
SECTION 5. Information and Education –
(a) The government shall ensure that objective and
consistent information is provided on infant feeding, for use by
families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any
information on breastmilk vis-à-visbreastmilk substitutes, supplement and
related products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio,
or visual, dealing with the feeding of infants and intended to reach
pregnant women and mothers of infants, shall include clear
information on all the following points: (1) the benefits and superiority
of breastfeeding; (2) maternal nutrition, and the preparation for and
maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of
 reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or
home-prepared. When such materials contain information about
the use of infant formula, they shall include the social and
financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in particular, the
health hazards of unnecessary or improper use of infant
formula and other breastmilk substitutes. Such materials shall
not use any picture or text which may idealize the use of
breastmilk substitutes.
SECTION 8. Health Workers –
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters, and such
information shall not imply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include
the information specified in Section 5(b).
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the products,
and in such a way as not to discourage breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not
be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to
whom such information may be disseminated under Sections 6 through 9 of
the Milk Code54 to ensure that the information that would reach pregnant
women, mothers of infants, and health professionals and workers in the
health care system is restricted to scientific and factual matters and
shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code
to control information regarding breastmilk vis-a-vis breastmilk substitutes is
not absolute as the power to control does not encompass the power to
absolutely prohibit the advertising, marketing, and promotion of breastmilk
substitutes.
The following are the provisions of the Milk Code that unequivocally indicate
that the control over information given to the DOH is not absolute and that
absolute prohibition is not contemplated by the Code:
a) Section 2 which requires adequate information and appropriate
marketing and distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code – The aim of the Code is to
contribute to the provision of safe and adequate nutrition for
infants by the protection and promotion of breastfeeding and
by ensuring the proper use of breastmilk substitutes and
breastmilk supplements when these are necessary, on the
basis of adequate information and through appropriate
marketing and distribution.
b) Section 3 which specifically states that the Code applies to the
marketing of and practices related to breastmilk substitutes, including
infant formula, and to information concerning their use;
c) Section 5(a) which provides that the government shall ensure that
objective and consistent information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual
informational and educational materials shall not use any picture or
text which may idealize the use of breastmilk substitutes and should
include information on the health hazards of unnecessary or
improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and
empowers the IAC to review and examine advertising, promotion,
and other marketing materials;
f) Section 8(b) which states that milk companies may provide
information to health professionals but such information should be
restricted to factual and scientific matters and shall not imply or
create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and
g) Section 10 which provides that containers or labels should not
contain information that would discourage breastfeeding and idealize
the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the
RIRR regarding labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some
labeling requirements, specifically: a) that there be a statement that there is
no substitute to breastmilk; and b) that there be a statement that powdered
infant formula may contain pathogenic microorganisms and must be
prepared and used appropriately. Section 1657of the RIRR prohibits all health
and nutrition claims for products within the scope of the Milk Code, such as
claims of increased emotional and intellectual abilities of the infant and young
child.
These requirements and limitations are consistent with the provisions of
Section 8 of the Milk Code, to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters, and such
information shall notimply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the
information specified in Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms
"humanized," "maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would
imply or create a belief that there is any milk product equivalent to breastmilk
or which is humanized or maternalized, as such information would be
inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information
given to health workers regarding breastmilk substitutes, not to containers
and labels thereof. However, such restrictive application of Section 8(b) will
result in the absurd situation in which milk companies and distributors are
forbidden to claim to health workers that their products are substitutes or
equivalents of breastmilk, and yet be allowed to display on the containers
and labels of their products the exact opposite message. That askewed
interpretation of the Milk Code is precisely what Section 5(a) thereof seeks to
avoid by mandating that all information regarding breastmilk vis-a-
vis breastmilk substitutes be consistent, at the same time giving the
government control over planning, provision, design, and dissemination of
information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state
that the product offered is not a substitute for breastmilk, is a reasonable
means of enforcing Section 8(b) of the Milk Code and deterring
circumvention of the protection and promotion of breastfeeding as embodied
in Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It
implements Section 5(b) of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio,
or visual, dealing with the feeding of infants and intended to reach
pregnant women and mothers of infants, shall include clear
information on all the following points: x x x (5) where needed, the
proper use of infant formula, whether manufactured industrially or
home-prepared. When such materials contain information about the
use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods
or feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other
breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes. (Emphasis
supplied)
The label of a product contains information about said product intended for
the buyers thereof. The buyers of breastmilk substitutes are mothers of
infants, and Section 26 of the RIRR merely adds a fair warning about the
likelihood of pathogenic microorganisms being present in infant formula and
other related products when these are prepared and used inappropriately.
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that
formula milk is prone to contaminations and there is as yet no technology
that allows production of powdered infant formula that eliminates all forms of
contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to
contain the message regarding health hazards including the possibility of
contamination with pathogenic microorganisms is in accordance with Section
5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-
vis breastmilk substitutes and supplements and related products cannot be
questioned. It is its intervention into the area of advertising, promotion, and
marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers. –
(a) No advertising, promotion or other marketing materials, whether
written, audio or visual, for products within the scope of this Code
shall be printed, published, distributed, exhibited and broadcast
unless such materials are duly authorized and approved by an inter-
agency committee created herein pursuant to the applicable
standards provided for in this Code.
the Milk Code invested regulatory authority over advertising, promotional and
marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring -
(a) For purposes of Section 6(a) of this Code, an inter-agency
committee composed of the following members is hereby created:
Minister of Health -------------------
Minister of Trade and Industry -------------------
Minister of Justice -------------------
Minister of Social Services and Development -------------------
The members may designate their duly authorized representative to
every meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other
marketing materials, whether written, audio or visual, on
products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions
from and prohibit the printing, publication, distribution,
exhibition and broadcast of, all advertising promotion or
other marketing materials, whether written, audio or visual,
on products within the scope of this Code;
(3) To prescribe the internal and operational procedure for
the exercise of its powers and functions as well as the
performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are
necessary or proper for the implementation of Section
6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition – No advertising, promotions,
sponsorships, or marketing materials and activities for breastmilk
substitutes intended for infants and young children up to twenty-four
(24) months, shall be allowed, because they tend to convey or give
subliminal messages or impressions that undermine breastmilk and
breastfeeding or otherwise exaggerate breastmilk substitutes and/or
replacements, as well as related products covered within the scope
of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and
activities for breastmilk substitutes in line with the RIRR’s declaration of
principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles –
xxxx
(f) Advertising, promotions, or sponsorships of infant formula,
breastmilk substitutes and other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only
the regulatory authority given to the IAC but also imposed absolute
prohibition on advertising, promotion, and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the
Milk Code in Section 6 thereof for prior approval by IAC of all advertising,
marketing and promotional materials prior to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and
repeatedly insisted, during the oral arguments on June 19, 2007, that the
prohibition under Section 11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by
Petitioner is whether or not there is an absolute prohibition on
advertising making AO 2006-12 unconstitutional. We maintained that
what AO 2006-12 provides is not an absolute prohibition because
Section 11 while it states and it is entitled prohibition it states that no
advertising, promotion, sponsorship or marketing materials and
activities for breast milk substitutes intended for infants and young
children up to 24 months shall be allowed because this is the
standard they tend to convey or give subliminal messages or
impression undermine that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections
because the other Section, Section 12, provides for the inter agency
committee that is empowered to process and evaluate all the
advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and
manufacture, it simply regulates the advertisement and the
promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken
together with the provision on the Inter-Agency Committee that
processes and evaluates because there may be some information
dissemination that are straight forward information dissemination.
What the AO 2006 is trying to prevent is any material that will
undermine the practice of breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has
authority or power to promulgate Rules and Regulations regarding
the Advertising, Promotion and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee,
Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its
rule making authority when it totally banned advertising and
promotion under Section 11 prescribed the total effect rule as well as
the content of materials under Section 13 and 15 of the rules and
regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total
absolute ban. Second, the Inter-Agency Committee is under the
Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no
absolute ban on advertising of breastmilk substitutes in the Revised
Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on
advertising of breastmilk substitutes intended for children two (2)
years old and younger?
 SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-
Agency Committee that can evaluate some advertising and
promotional materials, subject to the standards that we have stated
earlier, which are- they should not undermine breastfeeding, Your
Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in
relation with the other Sections, particularly 12 and 13 and 15, Your
Honor, because it is recognized that the Inter-Agency Committee has
that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on
advertisement regarding milk substitute regarding infants two (2)
years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition,
however, we take exceptions and standards have been set. One of
which is that, the Inter-Agency Committee can allow if the advertising
and promotions will not undermine breastmilk and breastfeeding,
Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and
regulations for the approval or rejection of advertising, promotional, or other
marketing materials under Section 12(a) of the Milk Code, said provision
must be related to Section 6 thereof which in turn provides that the rules and
regulations must be "pursuant to the applicable standards provided for in this
Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the
Code, which, at the risk of being repetitious, and for easy reference, are
quoted hereunder:
SECTION 5. Information and Education –
xxxx
(b) Informational and educational materials, whether written, audio,
or visual, dealing with the feeding of infants and intended to reach
pregnant women and mothers of infants, shall include clear
information on all the following points: (1) the benefits and superiority
of breastfeeding; (2) maternal nutrition, and the preparation for and
maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of
reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or
home-prepared. When such materials contain information about the
use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods of
feeding methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text which
may idealize the use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers. –
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters and such information
shall not imply or create a belief that bottle feeding is equivalent or
superior to breastfeeding. It shall also include the information
specified in Section 5(b).
xxxx
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the products, and
in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily
readable and understandable message in Pilipino or English printed
on it, or on a label, which message can not readily become
separated from it, and which shall include the following points:
(i) the words "Important Notice" or their equivalent;
 (ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the
advice of a health worker as to the need for its use and the
proper methods of use; and
(iv) instructions for appropriate preparation, and a warning
against the health hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal
implementing agency for the enforcement of the provisions of the Code. In
relation to such responsibility of the DOH, Section 5(a) of the Milk Code
states that:
SECTION 5. Information and Education –
(a) The government shall ensure that objective and
consistent information is provided on infant feeding, for use by
families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and
dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into
operational terms the standards set forth in Sections 5, 8, and 10 of the
Milk Code, by which the IAC shall screen advertising, promotional, or
other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for
Section 13 in the RIRR which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope
of this Code must be objective and should not equate or make the
product appear to be as good or equal to breastmilk or breastfeeding
in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should not directly or
indirectly suggest that buying their product would produce better
individuals, or resulting in greater love, intelligence, ability, harmony
or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on
advertising, promotion, and marketing. Through that single provision, the
DOH exercises control over the information content of advertising,
promotional and marketing materials on breastmilk vis-a-vis breastmilk
substitutes, supplements and other related products. It also sets a viable
standard against which the IAC may screen such materials before they are
made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court
held:
x x x [T]his Court had, in the past, accepted as sufficient standards
the following: "public interest," "justice and equity," "public
convenience and welfare," and "simplicity, economy and welfare." 65
In this case, correct information as to infant feeding and nutrition is infused
with public interest and welfare.
4. With regard to activities for dissemination of information to health
professionals, the Court also finds that there is no inconsistency between the
provisions of the Milk Code and the RIRR. Section 7(b)66 of the Milk Code, in
relation to Section 8(b)67 of the same Code, allows dissemination of
information to health professionals but such information is restricted to
scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit
the giving of information to health professionals on scientific and
factual matters. What it prohibits is the involvement of the manufacturer and
distributor of the products covered by the Code in activities for the promotion,
education and production of Information, Education and Communication
(IEC) materials regarding breastfeeding that are intended for women and
children. Said provision cannot be construed to encompass even
the dissemination of information to health professionals, as
restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk
manufacturers and distributors to extend assistance in research and in the
continuing education of health professionals, while Sections 22 and 32 of the
RIRR absolutely forbid the same. Petitioner also assails Section 4(i) 69 of the
RIRR prohibiting milk manufacturers' and distributors' participation in any
policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their
representatives should not form part of any policymaking body or entity in
relation to the advancement of breastfeeding. The Court finds nothing in said
provisions which contravenes the Milk Code. Note that under Section 12(b)
of the Milk Code, it is the DOH which shall be principally responsible for
the implementation and enforcement of the provisions of said Code. It is
entirely up to the DOH to decide which entities to call upon or allow to be part
of policymaking bodies on breastfeeding. Therefore, the RIRR's prohibition
on milk companies’ participation in any policymaking body in relation to the
advancement of breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits
milk companies from giving reasearch assistance and continuing
education to health professionals. Section 2270 of the RIRR does not
pertain to research assistance to or the continuing education of health
professionals; rather, it deals with breastfeeding promotion and education
for women and children. Nothing in Section 22 of the RIRR prohibits milk
companies from giving assistance for research or continuing education to
health professionals; hence, petitioner's argument against this particular
provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance.
Said sections of the RIRR provide that research assistance for health
workers and researchers may be allowed upon approval of an ethics
committee, and with certain disclosure requirements imposed on the
milk company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such
research or educational assistance may be given by milk companies or under
what conditions health workers may accept the assistance. Thus, Sections 9
and 10 of the RIRR imposing limitations on the kind of research done or
extent of assistance given by milk companies are completely in accord with
the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies
from giving assistance, support, logistics or training to health workers. This
provision is within the prerogative given to the DOH under Section 8(e) 74of
the Milk Code, which provides that manufacturers and distributors of
breastmilk substitutes may assist in researches, scholarships and the
continuing education, of health professionals in accordance with the rules
and regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also
consistent with the Milk Code. Section 6(f) of the Milk Code provides that
donations may be made by manufacturers and distributors of breastmilk
substitutes upon the request or with the approval of the DOH. The law
does not proscribe the refusal of donations. The Milk Code leaves it purely to
the discretion of the DOH whether to request or accept such donations. The
DOH then appropriately exercised its discretion through Section 5175 of the
RIRR which sets forth its policy not to request or approve donations from
manufacturers and distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the
RIRR that any donation from milk companies not covered by the Code
should be coursed through the IAC which shall determine whether such
donation should be accepted or refused. As reasoned out by respondents,
the DOH is not mandated by the Milk Code to accept donations. For that
matter, no person or entity can be forced to accept a donation. There is,
therefore, no real inconsistency between the RIRR and the law because the
Milk Code does not prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for administrative
sanctions that are not found in the Milk Code, the Court upholds petitioner's
objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines,
Inc.76 is misplaced. The glaring difference in said case and the present case
before the Court is that, in the Civil Aeronautics Board, the Civil Aeronautics
Administration (CAA) was expressly granted by the law (R.A. No. 776) the
power to impose fines and civil penalties, while the Civil Aeronautics Board
(CAB) was granted by the same law the power to review on appeal the order
or decision of the CAA and to determine whether to impose, remit, mitigate,
increase or compromise such fine and civil penalties. Thus, the Court upheld
the CAB's Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines,
Inc.,77 the Court upheld the Department of Energy (DOE) Circular No. 2000-
06-10 implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for
fines for the commission of prohibited acts. The Court found that nothing in
the circular contravened the law because the DOE was expressly authorized
by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative
Code grants the DOH the authority to fix or impose administrative fines.
Thus, without any express grant of power to fix or impose such fines, the
DOH cannot provide for those fines in the RIRR. In this regard, the DOH
again exceeded its authority by providing for such fines or sanctions in
Section 46 of the RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations.
Section 12(b) (3) of the Milk Code authorizes the DOH to "cause the
prosecution of the violators of this Code and other pertinent laws on products
covered by this Code." Section 13 of the Milk Code provides for the penalties
to be imposed on violators of the provision of the Milk Code or the rules and
regulations issued pursuant to it, to wit:
SECTION 13. Sanctions –
 (a) Any person who violates the provisions of this Code or the rules
and regulations issued pursuant to this Code shall, upon
conviction, be punished by a penalty of two (2) months to one (1)
year imprisonment or a fine of not less than One Thousand Pesos
(P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or
both. Should the offense be committed by a juridical person, the
chairman of the Board of Directors, the president, general manager,
or the partners and/or the persons directly responsible therefor, shall
be penalized.
(b) Any license, permit or authority issued by any government
agency to any health worker, distributor, manufacturer, or marketing
firm or personnel for the practice of their profession or occupation, or
for the pursuit of their business, may, upon recommendation of the
Ministry of Health, be suspended or revoked in the event of repeated
violations of this Code, or of the rules and regulations issued
pursuant to this Code. (Emphasis supplied)
8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws that
are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules
and regulations or parts thereof inconsistent with these revised rules
and implementing regulations are hereby repealed or modified
accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only
orders, issuances and rules and regulations. Thus, said provision is valid as
it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-
making power or the power to make rules and regulations which results in
delegated legislation that is within the confines of the granting statute and the
Constitution, and subject to the doctrine of non-delegability and separability
of powers.78 Such express grant of rule-making power necessarily includes
the power to amend, revise, alter, or repeal the same. 79 This is to allow
administrative agencies flexibility in formulating and adjusting the details and
manner by which they are to implement the provisions of a law, 80 in order to
make it more responsive to the times. Hence, it is a standard provision in
administrative rules that prior issuances of administrative agencies that are
inconsistent therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of
the DOH to promulgate and in contravention of the Milk Code and, therefore,
null and void. The rest of the provisions of the RIRR are in consonance with
the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the
Respondents is unnecessary and oppressive, and is offensive to
the due process clause of the Constitution, insofar as the same
is in restraint of trade and because a provision therein is
inadequate to provide the public with a comprehensible basis to
determine whether or not they have committed a
violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and
5289 as the provisions that suppress the trade of milk and, thus, violate the
due process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected
to some form of regulation for the public good. Public interest must be upheld
over business interests.90 In Pest Management Association of the Philippines
v. Fertilizer and Pesticide Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut
Desiccators v. Philippine Coconut Authority, despite the fact that
"our present Constitution enshrines free enterprise as a
policy, it nonetheless reserves to the government the power to
intervene whenever necessary to promote the general welfare."
There can be no question that the unregulated use or proliferation of
pesticides would be hazardous to our environment. Thus, in the
aforecited case, the Court declared that "free enterprise does not
call for removal of ‘protective regulations’." x x x It must be
clearly explained and proven by competent evidence just
exactly how such protective regulation would result in the
restraint of trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk
manufacturers’ participation in any policymaking body (Section 4(i)), classes
and seminars for women and children (Section 22); the giving of assistance,
support and logistics or training (Section 32); and the giving of donations
(Section 52) would unreasonably hamper the trade of breastmilk substitutes.
Petitioner has not established that the proscribed activities are indispensable
to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and oppressive for
being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is
unreasonable and oppressive. Said section provides for the definition of the
term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner,
manufacturer, distributor of infant formula, follow-up milk, milk
formula, milk supplement, breastmilk substitute or replacement, or by
any other description of such nature, including their representatives
who promote or otherwise advance their commercial interests in
marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in
the public or private sector engaged in the business (whether directly
or indirectly) of marketing at the wholesale or retail level a product
within the scope of this Code. A "primary distributor" is a
manufacturer's sales agent, representative, national distributor or
broker.
The Court is not convinced that the definition of "milk company" provided in
the RIRR would bring about any change in the treatment or regulation of
"distributors" and "manufacturers" of breastmilk substitutes, as defined under
the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code,
constituting reasonable regulation of an industry which affects public health
and welfare and, as such, the rest of the RIRR do not constitute illegal
restraint of trade nor are they violative of the due process clause of the
Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and
46 of Administrative Order No. 2006-0012 dated May 12, 2006 are
declared NULL and VOID for being ultra vires. The Department of Health
and respondents are PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006
is LIFTED insofar as the rest of the provisions of Administrative Order No.
2006-0012 is concerned.
SO ORDERED.

xxxx

(j) "Manufacturer" means a corporation or other entity in the public or

private sector engaged in the business or function (whether directly
or indirectly or through an agent or and entity controlled by or under
contract with it) of manufacturing a products within the scope of this
Code.

Notably, the definition in the RIRR merely merged together under the term
"milk company" the entities defined separately under the Milk Code as
"distributor" and "manufacturer." The RIRR also enumerated in Section 5(w)
the products manufactured or distributed by an entity that would qualify it as
a "milk company," whereas in the Milk Code, what is used is the phrase
"products within the scope of this Code." Those are the only differences
between the definitions given in the Milk Code and the definition as re-stated
in the RIRR.

Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the RIRR
providing for just one term to encompass both entities. The definition of "milk
company" in the RIRR and the definitions of "distributor" and "manufacturer"
provided for under the Milk Code are practically the same.

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 be extended, in
accordance with the relevant laws and regulations of Japan, to the
Government of the Republic of the Philippines (hereinafter referred
to as "the Borrower I") by the Japan Bank for International
Cooperation (hereinafter referred to as "the Bank") to implement the
projects enumerated in the List A attached hereto (hereinafter
referred to as "the List A") according to the allocation for each project
as specified in the List A.
2. (1) The Loan I will be made available by loan agreements to be
concluded between the Borrower I and the Bank. The terms and
conditions of the Loan I as well as the procedure for its utilization will
be governed by said loan agreements which will contain, inter alia,
the following principles:
 ...
(2) Each of the loan agreements mentioned in sub-
paragraph (1) above will be concluded after the Bank is
satisfied of the feasibility, including environmental
consideration, of the project to which such loan agreement
relates.
3. (1) The Loan I will be made available to cover payments to be
made by the Philippine executing agencies to suppliers, contractors
and/or consultants of eligible source countries under such contracts
as may be entered into between them for purchases of products
and/or services required for the implementation of the projects
enumerated in the List A, provided that such purchases are made in
such eligible source countries for products produced in and/or
services supplied from those countries.
(2) The scope of eligible source countries mentioned in sub-
paragraph (1) above will be agreed upon between the
authorities concerned of the two Governments.
(3) A part of the Loan I may be used to cover eligible local
currency requirements for the implementation of the projects
enumerated in the List A.
4. With regard to the shipping and marine insurance of the products
purchased under the Loan I, the Government of the Republic of the
Philippines will refrain from imposing any restrictions that may hinder
fair and free competition among the shipping and marine insurance
companies.
x x x x2 1awphi1.net
Pertinently, List A, which specified the projects to be financed under the Loan
I, includes the Arterial Road Links Development Project (Phase IV), to wit:
LIST A
Maximum amount in million yen)
1. Secondary Education Development and Improvement Project
7,210
2. Rural Water Supply Project (Phase V) 951
3. Bohol Irrigation Project (Phase II) 6,078
4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990
5. Arterial Road Links Development Project (Phase IV) 15,384
6. Cordillera Road Improvement Project 5,852
7. Philippines-Japan Friendship Highway Mindanao Section
Rehabilitation Project (Phase II) 7,434
8. Rehabilitation and Maintenance of Bridges Along Arterial Roads
Project (Phase IV) 5,068
9. Maritime Safety Improvement Project (Phase C) 4,714
10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013
11. Pasig-Marikina River Channel Improvement Project (Phase I)
1,167
Total 79,8613
The Exchange of Notes further provided that:
III
xxxx
3. The Government of the Republic of the Philippines will ensure that the
products and/or services mentioned in sub-paragraph (1) of paragraph 3 of
Part I and sub-paragraph (1) of paragraph 4 of Part II are procured in
accordance with the guidelines for procurement of the Bank, which set
forth, inter alia, the procedures of international tendering to be followed
except where such procedures are inapplicable or inappropriate.
x x x x4
The Records of Discussion, which formed part of the Exchange of Notes,
also stated in part, thus:
xxxx
 1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the
Exchange of Notes concerning the financing of eligible local currency
requirements for the implementation of the projects mentioned in the said
sub-paragraph, the representative of the Japanese delegation stated that:
(1) such requirement of local currency as general administrative
expenses, interest during construction, taxes and duties, expenses
concerning office, remuneration to employees of the executing
agencies and housing, not directly related to the implementation of
the said projects, as well as purchase of land properties,
compensation and the like, however, will not be considered as
eligible for financing under the Loan I; and
(2) the procurement of products and/or services will be made in
accordance with the procedures of international competitive
tendering except where such procedures are inapplicable and
inappropriate.
x x x x5
Thus, in accordance with the agreement reached by the Government of
Japan and the Philippine Government, as expressed in the Exchange of
Notes between the representatives of the two governments, the Philippines
obtained from and was granted a loan by the JBIC. Loan Agreement No. PH-
P204 dated December 28, 1999, in particular, stated as follows:
Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN
BANK FOR INTERNATIONAL COOPERATION and the GOVERNMENT OF
THE REPUBLIC OF THE PHILIPPINES.
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.
The bid documents submitted by the prequalified contractors/bidders were
examined to determine their compliance with the requirements as
stipulated in Article 6 of the Instruction to Bidders. 12 After the lapse of the
deadline for the submission of bid proposals, the opening of the bids
commenced immediately. Prior to the opening of the respective bid
proposals, it was announced that the Approved Budget for the Contract
(ABC) was in the amount of ₱738,710,563.67.
The result of the bidding revealed the following three lowest bidders and their
respective bids vis-à-vis the ABC:13
Original Bid As Read As-Corrected Bid Amount
Name of Bidder
(Pesos)
1) China Road And Bridge
₱ 993,183,904.98
Corporation
2) Cavite Ideal Int’l Const.
₱1,099,926,598.11
Devt. 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, 2004.14
After further evaluation of the bids, particularly those of the lowest three
bidders, Mr. Hedifume Ezawa, Project Manager of the Catanduanes
Circumferential Road Improvement Project (CCRIP), in his Contractor’s Bid
Evaluation Report dated April 2004, recommended the award of the contract
to private respondent China Road & Bridge Corporation:
In accordance with the Guidelines for the Procurements under ODA [Official
Development Assistance] Loans, the Consultant hereby recommends the
award of the contract for the construction of CP I, San Andres (Codon) –
Virac – Jct. Bato – Viga Section under the Arterial Road Links Development
Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying Bidder,
China Road and Bridge Corporation, at its total corrected bid amount of Nine
Hundred Fifty-Two Million Five Hundred Sixty-Four Thousand Eight Hundred
Twenty-One & 71/100 Pesos.15
The BAC of the DPWH, with the approval of then Acting Secretary Soriquez,
issued the assailed Resolution No. PJHL-A-04-012 dated May 7, 2004
recommending the award in favor of private respondent China Road & Bridge
Corporation of the contract for the implementation of civil works for CP I, San
Andres (Codon) – Virac – Jct. Bato – Viga Road (Catanduanes
Circumferential Road Improvement Project) of the Arterial Roads Links
Development Project, Phase IV, located in Catanduanes Province, under
JBIC Loan Agreement No. PH-P204.16 On September 29, 2004, a Contract of
Agreement was entered into by and between the DPWH and private
respondent China Road & Bridge Corporation for the implementation of the
CP I project.
The Parties
(Pesos)
Petitioner Plaridel M. Abaya claims that he filed the instant petition as a
₱952,564,821.71
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
₱1,099,926,598.11
other hand, is a non-stock, non-profit corporation organized under the
existing Philippine laws. It claims that its members are all taxpayers and
alumni of the Philippine Military Academy. It is represented by its President,
₱1,125,392,475.36
Carlos L. Agustin.
Named as public respondents are the DPWH, as the government agency
tasked with the implementation of government infrastructure projects; the
Department of Budget and Management (DBM) as the government agency
that authorizes the release and disbursement of public funds for the
implementation of government infrastructure projects; and the Department of
Finance (DOF) as the government agency that acts as the custodian and
manager of all financial resources of the government. Also named as
individual public respondents are Hermogenes E. Ebdane, Jr., Emilia T.
Boncodin and Cesar V. Purisima in their capacities as former Secretaries of
the DPWH, DBM and DOF, respectively. On the other hand, public
respondent Norma L. Lasala was impleaded in her capacity as Treasurer of
the Bureau of Treasury.
Private respondent China Road & Bridge Corporation is a duly organized
corporation engaged in the business of construction.
The Petitioners’ Case
The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012
dated May 7, 2004, which recommended the award to private respondent
China Road & Bridge Corporation of the contract for the implementation of
the civil works of CP I. They also seek to annul the contract of agreement
subsequently entered into by and between the DPWH and private
respondent China Road & Bridge Corporation pursuant to the said resolution.
They pose the following issues for the Court’s resolution:
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, 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:
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.
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 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. –
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 clause 36 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:
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.
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:
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 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 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 instruments. Instead,
their rules apply to all of those instruments as long as they meet the common
requirements.68
Significantly, an exchange of notes is considered a form of an executive
agreement, which becomes binding through executive action without the
need of a vote by the Senate or Congress. The following disquisition by
Francis B. Sayre, former United States High Commissioner to the
Philippines, entitled "The Constitutionality of Trade Agreement Acts," quoted
in Commissioner of Customs v. Eastern Sea Trading,69 is apropos:
Agreements concluded by the President which fall short of treaties are
commonly referred to as executive agreements and are no less common in
our scheme of government than are the more formal instruments – treaties
and conventions. They sometimes take the form of exchange of notes and at
other times that of more formal documents denominated "agreements" or
"protocols". The point where ordinary correspondence between this and other
governments ends and agreements – whether denominated executive
agreements or exchange of notes or otherwise – begin, may sometimes be
difficult of ready ascertainment. It would be useless to undertake to discuss
here the large variety of 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

The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure

under which bids above or below a predetermined bid value assessment are
automatically disqualified. Succinctly put, it absolutely prohibits the imposition
of ceilings on bids.

Under the fundamental principle of international law of pacta sunt

servanda,73 which is, in fact, embodied in Section 4 of RA 9184 as it provides
that "[a]ny treaty or international or executive agreement affecting the subject
matter of this Act to which the Philippine government is a signatory shall be
observed," the DPWH, as the executing agency of the projects financed by
Loan Agreement No. PH-P204, rightfully awarded the contract for the
implementation of civil works for the CP I project to private respondent China
Road & Bridge Corporation.

WHEREFORE, premises considered, the petition is DISMISSED.

SO ORDERED.

G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by
GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL
PIÑOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC.
RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES
ESPERON, JR., the latter in his capacity as the present and duly-
appointed Presidential Adviser on the Peace Process (OPAPP) or the
so-called Office of the Presidential Adviser on the Peace
Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO
L. LOBREGAT, City Mayor of Zamboanga, and in his personal capacity
as resident of the City of Zamboanga, Rep. MA. ISABELLE G. CLIMACO,
District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of
Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL (GRP), as represented by RODOLFO C. GARCIA,
LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN
and HERMOGENES ESPERON, in his capacity as the Presidential
Adviser on Peace Process,respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE
LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC.
RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES
ESPERON, JR., in his capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or SEC. EDUARDO
ERMITA, in his capacity as Executive Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as
represented by HON. ROLANDO E. YEBES, in his capacity as Provincial
Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-Governor
and Presiding Officer of the Sangguniang Panlalawigan, HON. CECILIA
JALOSJOS CARREON, Congresswoman, 1st Congressional District,
HON. CESAR G. JALOSJOS, Congressman, 3rd Congressional District,
and Members of the Sangguniang Panlalawigan of the Province of
Zamboanga del Norte, namely, HON. SETH FREDERICK P. JALOSJOS,
HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II,
HON. EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC
L. ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPH
BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S.
DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E.
TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C.
GARCIA and HON. HERMOGENES ESPERON, in his capacity as the
Presidential Adviser of Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.
PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
NEGOTIATING PANEL, represented by its Chairman RODOLFO C.
GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE
NEGOTIATING PANEL, represented by its Chairman MOHAGHER
IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-
intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor
NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR
CHERRYLYN P. SANTOS-AKBAR,petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T.
MANGUDADATU, in his capacity as Provincial Governor and a resident
of the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of
Indigenous Peoples in Mindanao Not Belonging to the MILF, petitioner-
in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO
C. ALISUAG and RICHALEX G. JAGMIS, as citizens and residents of
Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF), respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT
(MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the
President in pursuing the peace process.While the facts surrounding this
controversy center on the armed conflict in Mindanao between the
government and the Moro Islamic Liberation Front (MILF), the legal issue
involved has a bearing on all areas in the country where there has been a
long-standing armed conflict. Yet again, the Court is tasked to perform a
delicate balancing act. It must uncompromisingly delineate the bounds within
which the President may lawfully exercise her discretion, but it must do so in
strict adherence to the Constitution, lest its ruling unduly restricts the freedom
of action vested by that same Constitution in the Chief Executive precisely to
enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP)
and the MILF, through the Chairpersons of their respective peace negotiating
panels, were scheduled to sign a Memorandum of Agreement on the
Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on
Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under
the leadership of the late Salamat Hashim, it splintered from the Moro
National Liberation Front (MNLF) then headed by Nur Misuari, on the ground,
among others, of what Salamat perceived to be the manipulation of the
MNLF away from an Islamic basis towards Marxist-Maoist orientations. 1
The signing of the MOA-AD between the GRP and the MILF was not to
materialize, however, for upon motion of petitioners, specifically those who
filed their cases before the scheduled signing of the MOA-AD, this Court
issued a Temporary Restraining Order enjoining the GRP from signing the
same.
The MOA-AD was preceded by a long process of negotiation and the
concluding of several prior agreements between the two parties beginning in
1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the
GRP and MILF Peace Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General Framework of
Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-
AD by stating that the same contained, among others, the commitment of the
parties to pursue peace negotiations, protect and respect human rights,
negotiate with sincerity in the resolution and pacific settlement of the conflict,
and refrain from the use of threat or force to attain undue advantage while
the peace negotiations on the substantive agenda are on-going. 2
Early on, however, it was evident that there was not going to be any smooth
sailing in the GRP-MILF peace process. Towards the end of 1999 up to early
2000, the MILF attacked a number of municipalities in Central Mindanao and,
in March 2000, it took control of the town hall of Kauswagan, Lanao del
Norte.3 In response, then President Joseph Estrada declared and carried out
an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military
offensive against the MILF was suspended and the government sought a
resumption of the peace talks. The MILF, according to a leading MILF
member, initially responded with deep reservation, but when President
Arroyo asked the Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the negotiating table, the
MILF convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being
facilitated by the Malaysian government, the parties signing on the same
date the Agreement on the General Framework for the Resumption of Peace
Talks Between the GRP and the MILF. The MILF thereafter suspended all its
military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from June
20-22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on
Peace (Tripoli Agreement 2001) containing the basic principles and agenda
on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in
Tripoli Agreement 2001 simply agreed "that the same be discussed further by
the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-
7, 2001 which ended with the signing of the Implementing Guidelines on the
Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status
between the parties. This was followed by the Implementing Guidelines on
the Humanitarian Rehabilitation and Development Aspects of the Tripoli
Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia.
Nonetheless, there were many incidence of violence between government
forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13,
2003 and he was replaced by Al Haj Murad, who was then the chief peace
negotiator of the MILF. Murad's position as chief peace negotiator was taken
over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala
Lumpur, eventually leading to the crafting of the draft MOA-AD in its final
form, which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever
embodied in an instrument - the MOA-AD which is assailed principally by the
present petitions bearing docket numbers 183591, 183752, 183893, 183951
and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on
Ancestral Domain7 and the Presidential Adviser on the Peace Process
(PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato 8 and Vice-Governor
Emmanuel Piñol filed a petition, docketed as G.R. No. 183591, for
Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary
Injunction and Temporary Restraining Order. 9 Invoking the right to information
on matters of public concern, petitioners seek to compel respondents to
disclose and furnish them the complete and official copies of the MOA-AD
including its attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the holding of a
public consultation thereon. Supplementarily, petitioners pray that the MOA-
AD be declared unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No.
183752, also for Mandamus and Prohibition11 filed by the City of
Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep.
Erico Basilio Fabian who likewise pray for similar injunctive reliefs.
Petitioners herein moreover pray that the City of Zamboanga be excluded
from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in
the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining
Order commanding and directing public respondents and their agents to
cease and desist from formally signing the MOA-AD.13 The Court also
required the Solicitor General to submit to the Court and petitioners the
official copy of the final draft of the MOA-AD,14 to which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory
Relief, docketed as G.R. No. 183893, praying that respondents be enjoined
from signing the MOA-AD or, if the same had already been signed, from
implementing the same, and that the MOA-AD be declared unconstitutional.
Petitioners herein additionally implead Executive Secretary Eduardo Ermita
as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-
Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos,
and the members18 of the Sangguniang Panlalawigan of Zamboanga del
Norte filed on August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter alia, that the
MOA-AD be declared null and void and without operative effect, and that
respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel
III filed a petition for Prohibition,20docketed as G.R. No. 183962, praying for a
judgment prohibiting and permanently enjoining respondents from formally
signing and executing the MOA-AD and or any other agreement derived
therefrom or similar thereto, and nullifying the MOA-AD for being
unconstitutional and illegal. Petitioners herein additionally implead as
respondent the MILF Peace Negotiating Panel represented by its Chairman
Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file
their petitions-/comments-in-intervention. Petitioners-in-Intervention include
Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty.
Adel Tamano, the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the
Province of Sultan Kudarat22 and Gov. Suharto Mangudadatu, the
Municipality of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City
and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao
and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo
Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of
Palawan City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the
Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed
their respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the
petitions. Respondents filed Comments on the petitions, while some of
petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that
the Executive Department shall thoroughly review the MOA-AD and pursue
further negotiations to address the issues hurled against it, and thus moved
to dismiss the cases. In the succeeding exchange of pleadings, respondents'
motion was met with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that
tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of
the disclosure of official copies of the final draft of the
Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local
Government Units is concerned, if it is considered that
consultation has become fait accompli with the finalization of
the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;
3. Whether respondent Government of the Republic of the
Philippines Peace Panel committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it negotiated and
initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;
 4. Whether there is a violation of the people's right to information on
matters of public concern (1987 Constitution, Article III, Sec. 7) under
a state policy of full disclosure of all its transactions involving public
interest (1987 Constitution, Article II, Sec. 28) including public
consultation under Republic Act No. 7160 (LOCAL GOVERNMENT
CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the
1997 Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of
the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity
(BJE) as a separate state, or a juridical, territorial or political
subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to
conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic
Liberation Front for ancestral domain in violation of Republic
Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT
OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority
to so bind the Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato,
Cities of Zamboanga, Iligan and Isabela, and the Municipality of
Linamon, Lanao del Norte in/from the areas covered by the projected
Bangsamoro Homeland is a justiciable question; and
7. Whether desistance from signing the MOA derogates any prior
valid commitments of the Government of the Republic of the
Philippines.24
The Court, thereafter, ordered the parties to submit their respective
Memoranda. Most of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the
subject five petitions and six petitions-in-intervention against the MOA-AD, as
well as the two comments-in-intervention in favor of the MOA-AD, the Court
takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not
only four earlier agreements between the GRP and MILF, but also two
agreements between the GRP and the MNLF: the 1976 Tripoli Agreement,
and the Final Peace Agreement on the Implementation of the 1976 Tripoli
Agreement, signed on September 2, 1996 during the administration of
President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for
the Autonomous Region in Muslim Mindanao (ARMM) 25 and the Indigenous
Peoples Rights Act (IPRA),26 and several international law instruments - the
ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries in relation to the UN Declaration on the Rights of the
Indigenous Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact rights
entrenchment emanating from the regime of dar-ul-mua'hada (or
territory under compact) and dar-ul-sulh (or territory under peace agreement)
that partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see
the world through a simple dichotomy: there was the dar-ul-Islam (the Abode
of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands
where Islamic laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were outlawed or
ineffective.27 This way of viewing the world, however, became more complex
through the centuries as the Islamic world became part of the international
community of nations.
As Muslim States entered into treaties with their neighbors, even with distant
States and inter-governmental organizations, the classical division of the
world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New
terms were drawn up to describe novel ways of perceiving non-Muslim
territories. For instance, areas like dar-ul-mua'hada (land of compact)
and dar-ul-sulh (land of treaty) referred to countries which, though under a
secular regime, maintained peaceful and cooperative relations with Muslim
States, having been bound to each other by treaty or agreement. Dar-ul-
aman (land of order), on the other hand, referred to countries which, though
not bound by treaty with Muslim States, maintained freedom of religion for
Muslims.28
It thus appears that the "compact rights entrenchment" emanating from the
regime of dar-ul-mua'hada and dar-ul-sulh simply refers to all other
agreements between the MILF and the Philippine government - the
Philippines being the land of compact and peace agreement - that partake of
the nature of a treaty device, "treaty" being broadly defined as "any solemn
agreement in writing that sets out understandings, obligations, and benefits
for both parties which provides for a framework that elaborates the principles
declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and
all Indigenous peoples of Mindanao to identify themselves and be accepted
as ‘Bangsamoros.'" It defines "Bangsamoro people" as the natives or
original inhabitants of Mindanao and its adjacent islands including Palawan
and the Sulu archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD,
includes not only "Moros" as traditionally understood even by Muslims, 31 but
all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD
adds that the freedom of choice of indigenous peoples shall be respected.
What this freedom of choice consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the
ownership of which is vested exclusively in the Bangsamoro people by virtue
of their prior rights of occupation.32 Both parties to the MOA-AD acknowledge
that ancestral domain does not form part of the public domain.33
The Bangsamoro people are acknowledged as having the right to self-
governance, which right is said to be rooted on ancestral territoriality
exercised originally under the suzerain authority of their sultanates and
the Pat a Pangampong ku Ranaw. The sultanates were described as states
or "karajaan/kadatuan" resembling a body politic endowed with all the
elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro
people on the past suzerain authority of the sultanates. As gathered, the
territory defined as the Bangsamoro homeland was ruled by several
sultanates and, specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent principalities
(pangampong) each ruled by datus and sultans, none of whom was supreme
over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the ‘First
Nation' with defined territory and with a system of government having entered
into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous
peoples of that territory, particularly those known as Indians. In Canada, each
of these indigenous peoples is equally entitled to be called "First Nation,"
hence, all of them are usually described collectively by the plural "First
Nations."36 To that extent, the MOA-AD, by identifying the Bangsamoro
people as "the First Nation" - suggesting its exclusive entitlement to that
designation - departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the
Ancestral Domain and Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as
well as the maritime, terrestrial, fluvial and alluvial domains, including the
aerial domain and the atmospheric space above it, embracing the Mindanao-
Sulu-Palawan geographic region.38
More specifically, the core of the BJE is defined as the present geographic
area of the ARMM - thus constituting the following areas: Lanao del Sur,
Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this
core also includes certain municipalities of Lanao del Norte that voted for
inclusion in the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities, municipalities
and barangays, which are grouped into two categories, Category A and
Category B. Each of these areas is to be subjected to a plebiscite to be held
on different dates, years apart from each other. Thus, Category A areas are
to be subjected to a plebiscite not later than twelve (12) months following the
signing of the MOA-AD.40 Category B areas, also called "Special Intervention
Areas," on the other hand, are to be subjected to a plebiscite twenty-five (25)
years from the signing of a separate agreement - the Comprehensive
Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over
all natural resources within its "internalwaters," defined as extending fifteen
(15) kilometers from the coastline of the BJE area; 42 that the BJE shall also
have "territorial waters," which shall stretch beyond the BJE internal waters
up to the baselines of the Republic of the Philippines (RP) south east and
south west of mainland Mindanao; and that within these territorial waters, the
BJE and the "Central Government" (used interchangeably with RP) shall
exercise joint jurisdiction, authority and management over all natural
resources.43 Notably, the jurisdiction over the internal waters is not similarly
described as "joint."
The MOA-AD further provides for the sharing of minerals on
the territorial waters between the Central Government and the BJE, in favor
of the latter, through production sharing and economic cooperation
agreement.44 The activities which the Parties are allowed to conduct on
the territorial waters are enumerated, among which are the exploration and
utilization of natural resources, regulation of shipping and fishing activities,
and the enforcement of police and safety measures.45 There is no similar
provision on the sharing of minerals and allowed activities with respect to
the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have the
option to establish trade missions in those countries. Such relationships and
understandings, however, are not to include aggression against the GRP.
The BJE may also enter into environmental cooperation agreements. 46
The external defense of the BJE is to remain the duty and obligation of the
Central Government. The Central Government is also bound to "take
necessary steps to ensure the BJE's participation in international meetings
and events" like those of the ASEAN and the specialized agencies of the UN.
The BJE is to be entitled to participate in Philippine official missions and
delegations for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part
of the ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the
jurisdiction and control thereon is to be vested in the BJE "as the party
having control within its territorial jurisdiction." This right carries
the proviso that, "in times of national emergency, when public interest so
requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or direct
the operation of such resources.48
The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people
arising from any unjust dispossession of their territorial and proprietary rights,
customary land tenures, or their marginalization shall be acknowledged.
Whenever restoration is no longer possible, reparation is to be in such form
as mutually determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and
Sharing Agreements (MPSA), Industrial Forest Management Agreements
(IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe
and monitor the implementation of the Comprehensive Compact. This
compact is to embody the "details for the effective enforcement" and "the
mechanisms and modalities for the actual implementation" of the MOA-AD.
The MOA-AD explicitly provides that the participation of the third party shall
not in any way affect the status of the relationship between the Central
Government and the BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government and the
BJE as "associative," characterized by shared authority and responsibility.
And it states that the structure of governance is to be based on executive,
legislative, judicial, and administrative institutions with defined powers and
functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the
existing legal framework" shall take effect upon signing of the
Comprehensive Compact and upon effecting the aforesaid amendments,
with due regard to the non-derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact. As
will be discussed later, much of the present controversy hangs on the
legality of this provision.
The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and banking,
education, legislation, legal, economic, police and internal security force,
judicial system and correctional institutions, the details of which shall be
discussed in the negotiation of the comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by
Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating
Panels of the GRP and the MILF, respectively. Notably, the penultimate
paragraph of the MOA-AD identifies the signatories as "the representatives
of the Parties," meaning the GRP and MILF themselves, and not merely of
the negotiating panels.53 In addition, the signature page of the MOA-AD
states that it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador
Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC)
Secretary General and Special Envoy for Peace Process in Southern
Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo,
Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim,
Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the
Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective
lists cum maps of the provinces, municipalities, and barangays under
Categories A and B earlier mentioned in the discussion on the strand on
TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or
controversies.54 Courts decline to issue advisory opinions or to resolve
hypothetical or feigned problems, or mere academic questions. 55 The
limitation of the power of judicial review to actual cases and controversies
defines the role assigned to the judiciary in a tripartite allocation of power, to
assure that the courts will not intrude into areas committed to the other
branches of government.56
An actual case or controversy involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as distinguished
from a hypothetical or abstract difference or dispute. There must be a
contrariety of legal rights that can be interpreted and enforced on the basis of
existing law and jurisprudence.57 The Court can decide the constitutionality of
an act or treaty only when a proper case between opposing parties is
submitted for judicial determination.58
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it.59 For a case to be considered ripe for adjudication, it is a
prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture, 60 and the petitioner
must allege the existence of an immediate or threatened injury to itself as a
result of the challenged action.61 He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act
complained of.62
The Solicitor General argues that there is no justiciable controversy that is
ripe for judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to
further negotiations and legislative enactments as well as
constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal that
does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly
complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable
Court has no authority to pass upon issues based on hypothetical or
feigned constitutional problems or interests with no concrete bases.
Considering the preliminary character of the MOA-AD, there are no
concrete acts that could possibly violate petitioners' and intervenors'
rights since the acts complained of are mere contemplated
steps toward the formulation of a final peace agreement. Plainly,
petitioners and intervenors' perceived injury, if at all, is merely
imaginary and illusory apart from being unfounded and based on
mere conjectures. (Underscoring supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
TERRITORY
xxxx
 2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the
Government stipulates to conduct and deliver, using all possible legal
measures, within twelve (12) months following the signing of the
MOA-AD, a plebiscite covering the areas as enumerated in the list
and depicted in the map as Category A attached herein (the
"Annex"). The Annex constitutes an integral part of this framework
agreement. Toward this end, the Parties shall endeavor to complete
the negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from the signing
of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes
to the legal framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact.64 (Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present
controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval
of the challenged action, the dispute is said to have ripened into a
judicial controversy even without any other overt act. Indeed, even a
singular violation of the Constitution and/or the law is enough to
awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously alleged
to have infringed the Constitution and the laws x x x settling the
dispute becomes the duty and the responsibility of the courts. 66
In Santa Fe Independent School District v. Doe,67 the United States Supreme
Court held that the challenge to the constitutionality of the school's policy
allowing student-led prayers and speeches before games was ripe for
adjudication, even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional on its face. 68
That the law or act in question is not yet effective does not negate ripeness.
For example, in New York v. United States,69 decided in 1992, the United
States Supreme Court held that the action by the State of New York
challenging the provisions of the Low-Level Radioactive Waste Policy Act
was ripe for adjudication even if the questioned provision was not to take
effect until January 1, 1996, because the parties agreed that New York had to
take immediate action to avoid the provision's consequences. 70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus.
Certiorari and Prohibition are remedies granted by law when any tribunal,
board or officer has acted, in the case of certiorari, or is proceeding, in the
case of prohibition, without or in excess of its jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction. 72 Mandamus is a
remedy granted by law 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, or
unlawfully excludes another from the use or enjoyment of a right or office to
which such other is entitled.73 Certiorari, Mandamus and Prohibition are
appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials. 74
The authority of the GRP Negotiating Panel is defined by Executive Order
No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said executive order
requires that "[t]he government's policy framework for peace, including the
systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order." 76
The present petitions allege that respondents GRP Panel and PAPP Esperon
drafted the terms of the MOA-AD without consulting the local government
units or communities affected, nor informing them of the proceedings. As will
be discussed in greater detail later, such omission, by itself, constitutes a
departure by respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate
the Constitution. The MOA-AD provides that "any provisions of the MOA-AD
requiring amendments to the existing legal framework shall come into force
upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework," implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in
effect, guaranteed to the MILF the amendment of the Constitution. Such act
constitutes another violation of its authority. Again, these points will be
discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent
that exceed their authority, by violating their duties under E.O. No. 3 and
the provisions of the Constitution and statutes, the petitions make a prima
facie case for Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a branch of
government is seriously alleged to have infringed the Constitution, it
becomes not only the right but in fact the duty of the judiciary to settle
the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "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." 78
Because constitutional cases are often public actions in which the relief
sought is likely to affect other persons, a preliminary question frequently
arises as to this interest in the constitutional question raised. 79
When suing as a citizen, the person complaining must allege 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 or act complained of.80 When the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an interest in
the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that public
funds are illegally disbursed or deflected to an illegal purpose, or that there is
a wastage of public funds through the enforcement of an invalid or
unconstitutional law.82 The Court retains discretion whether or not to allow a
taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive
that injures the institution of Congress causes a derivative but nonetheless
substantial injury that can be questioned by legislators. A member of the
House of Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office. 84
An organization may be granted standing to assert the rights of its
members,85 but the mere invocation by the Integrated Bar of the Philippines
or any member of the legal profession of the duty to preserve the rule of law
does not suffice to clothe it with standing.86
As regards a local government unit (LGU), it can seek relief in order to
protect or vindicate an interest of its own, and of the other LGUs. 87
Intervenors, meanwhile, may be given legal standing upon showing of facts
that satisfy the requirements of the law authorizing intervention, 88 such as a
legal interest in the matter in litigation, or in the success of either of the
parties.
In any case, the Court has discretion to relax the procedural technicality
on locus standi, given the liberal attitude it has exercised, highlighted in the
case of David v. Macapagal-Arroyo,89 where technicalities of procedure were
brushed aside, the constitutional issues raised being of paramount public
interest or of transcendental importance deserving the attention of the Court
in view of their seriousness, novelty and weight as precedents. 90 The Court's
forbearing stance on locus standi on issues involving constitutional issues
has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution
to determine whether the other branches of government have kept
themselves within the limits of the Constitution and the laws and have not
abused the discretion given them, has brushed aside technical rules of
procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and
petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the direct
and substantial injury that they, as LGUs, would suffer as their territories,
whether in whole or in part, are to be included in the intended domain of the
BJE. These petitioners allege that they did not vote for their inclusion in the
ARMM which would be expanded to form the BJE territory. Petitioners' legal
standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some right or
privilege or there would be wastage of public funds. The fact that they are a
former Senator, an incumbent mayor of Makati City, and a resident of
Cagayan de Oro, respectively, is of no consequence. Considering their
invocation of the transcendental importance of the issues at hand, however,
the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the conduct
of an illegal and unconstitutional plebiscite to delineate the BJE territory. On
that score alone, they can be given legal standing. Their allegation that the
issues involved in these petitions are of "undeniable transcendental
importance" clothes them with added basis for their personality to intervene
in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his
being a member of the Senate and a citizen to enforce compliance by
respondents of the public's constitutional right to be informed of the MOA-AD,
as well as on a genuine legal interest in the matter in litigation, or in the
success or failure of either of the parties. He thus possesses the requisite
standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of
the 3rd district of Davao City, a taxpayer and a member of the Bagobo tribe;
Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as taxpayer, resident and member of
the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as
taxpayer, they failed to allege any proper legal interest in the present
petitions. Just the same, the Court exercises its discretion to relax the
procedural technicality on locus standi given the paramount public interest in
the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace
and prosperity in Muslim Mindanao; and Muslim Legal Assistance
Foundation Inc., a non-government organization of Muslim lawyers, allege
that they stand to be benefited or prejudiced, as the case may be, in the
resolution of the petitions concerning the MOA-AD, and prays for the denial
of the petitions on the grounds therein stated. Such legal interest suffices to
clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with
the satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement of the Executive Secretary that "[n]o matter what the
Supreme Court ultimately decides[,] the government will not sign the MOA." 92
In lending credence to this policy decision, the Solicitor General points out
that the President had already disbanded the GRP Peace Panel. 93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic"
principle not being a magical formula that automatically dissuades courts in
resolving a case, it will decide cases, otherwise moot and academic, if it finds
that (a) there is a grave violation of the Constitution; 95 (b) the situation is of
exceptional character and paramount public interest is involved; 96 (c) the
constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public;97 and (d) the case is capable of
repetition yet evading review.98
Another exclusionary circumstance that may be considered is where there is
a voluntary cessation of the activity complained of by the defendant or doer.
Thus, once a suit is filed and the doer voluntarily ceases the challenged
conduct, it does not automatically deprive the tribunal of power to hear and
determine the case and does not render the case moot especially when the
plaintiff seeks damages or prays for injunctive relief against the possible
recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust them
into the domain of judicial review. The grounds cited above in David are just
as applicable in the present cases as they were, not only in David, but also
in Province of Batangas v. Romulo100 and Manalo v. Calderon101 where the
Court similarly decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the
MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot
the present petitions. It bears emphasis that the signing of the MOA-AD did
not push through due to the Court's issuance of a Temporary Restraining
Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a
mere "list of consensus points," especially given its nomenclature, the need
to have it signed or initialed by all the parties concerned on August 5,
2008, and the far-reaching Constitutional implications of these
"consensus points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on
the part of respondents to amend and effect necessary changes to the
existing legal framework for certain provisions of the MOA-AD to take
effect. Consequently, the present petitions are not confined to the terms and
provisions of the MOA-AD, but to other on-going and future negotiations
and agreements necessary for its realization. The petitions have not,
therefore, been rendered moot and academic simply by the public disclosure
of the MOA-AD,102 the manifestation that it will not be signed as well as the
disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public
interest, involving a significant part of the country's territory and the wide-
ranging political modifications of affected LGUs. The assertion that the
MOA-AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides impetus for the
Court to formulate controlling principles to guide the bench, the bar,
the public and, in this case, the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not
"pontificat[e] on issues which no longer legitimately constitute an actual case
or controversy [as this] will do more harm than good to the nation as a
whole."
The present petitions must be differentiated from Suplico. Primarily,
in Suplico, what was assailed and eventually cancelled was a stand-alone
government procurement contract for a national broadband network
involving a one-time contractual relation between two parties-the government
and a private foreign corporation. As the issues therein involved specific
government procurement policies and standard principles on contracts, the
majority opinion in Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and parties involved in
the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of
agreements necessary to carry out the Tripoli Agreement 2001. The MOA-
AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is
the third such component to be undertaken following the implementation of
the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August
28, 2008 to the Solicitor General, has stated that "no matter what the
Supreme Court ultimately decides[,] the government will not sign the MOA[-
AD]," mootness will not set in in light of the terms of the Tripoli Agreement
2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be
drawn up to carry out the Ancestral Domain Aspect of the Tripoli
Agreement 2001, in another or in any form, which could contain similar or
significantly drastic provisions. While the Court notes the word of the
Executive Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because that is the only
way that long-lasting peace can be assured," it is minded to render
a decision on the merits in the present petitions to formulate controlling
principles to guide the bench, the bar, the public and, most especially,
the government in negotiating with the MILF regarding Ancestral
Domain.
Respondents invite the Court's attention to the separate opinion of then Chief
Justice Artemio Panganiban in Sanlakas v. Reyes104 in which he stated that
the doctrine of "capable of repetition yet evading review" can override
mootness, "provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of their issuance."
They contend that the Court must have jurisdiction over the subject matter for
the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court
exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP)
is a petition for Injunction and Declaratory Relief, the Court will treat it as one
for Prohibition as it has far reaching implications and raises questions that
need to be resolved.105 At all events, the Court has jurisdiction over most if
not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again
apply the doctrine immediately referred to as what it had done in a number of
landmark cases.106 There is a reasonable expectation that petitioners,
particularly the Provinces of North Cotabato, Zamboanga del Norte and
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, will again be subjected to the same problem in the
future as respondents' actions are capable of repetition, in another or any
form.
It is with respect to the prayers for Mandamus that the petitions have become
moot, respondents having, by Compliance of August 7, 2008, provided this
Court and petitioners with official copies of the final draft of the MOA-AD and
its annexes. Too, intervenors have been furnished, or have procured for
themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically
two SUBSTANTIVE issues to be resolved, one relating to the manner in
which the MOA-AD was negotiated and finalized, the other relating to its
provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later
initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of
public concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the
statutory right to examine and inspect public records, a right which was
eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973
Constitution and the 1987 Constitution, has been recognized as a self-
executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that
access to public records is predicated on the right of the people to acquire
information on matters of public concern since, undoubtedly, in a democracy,
the pubic has a legitimate interest in matters of social and political
significance.
x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can
be no realistic perception by the public of the nation's problems, nor a
meaningful democratic decision-making if they are denied access to
information of general interest. Information is needed to enable the members
of society to cope with the exigencies of the times. As has been aptly
observed: "Maintaining the flow of such information depends on protection for
both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope
with the exigencies of their time, access to information of general interest
aids the people in democratic decision-making by giving them a better
perspective of the vital issues confronting the nation 112 so that they may be
able to criticize and participate in the affairs of the government in a
responsible, reasonable and effective manner. It is by ensuring an unfettered
and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people. 113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of
public concern114 faces no serious challenge. In fact, respondents admit that
the MOA-AD is indeed of public concern.115 In previous cases, the Court
found that the regularity of real estate transactions entered in the Register of
Deeds,116 the need for adequate notice to the public of the various laws, 117 the
civil service eligibility of a public employee,118 the proper management of
GSIS funds allegedly used to grant loans to public officials, 119 the recovery of
the Marcoses' alleged ill-gotten wealth,120 and the identity of party-list
nominees,121 among others, are matters of public concern. Undoubtedly, the
MOA-AD subject of the present cases is of public concern, involving as
it does the sovereignty and territorial integrity of the State, which directly
affects the lives of the public at large.
Matters of public concern covered by the right to information include steps
and negotiations leading to the consummation of the contract. In not
distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of
negotiations leading to the consummation of the transaction."
Certainly, a consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is
consummated, it may be too late for the public to expose its defects.
 Requiring a consummated contract will keep the public in the dark
until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates the
State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a
retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest."122 (Emphasis and italics in the
original)
Intended as a "splendid symmetry"123 to the right to information under the Bill
of Rights is the policy of public disclosure under Section 28, Article II of the
Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all
its transactions involving public interest.124
The policy of full public disclosure enunciated in above-quoted Section
28 complements the right of access to information on matters of public
concern found in the Bill of Rights. The right to information guarantees
the right of the people to demand information, while Section 28 recognizes
the duty of officialdom to give information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the
conduct of public affairs in a genuinely open democracy, with the people's
right to know as the centerpiece. It is a mandate of the State to be
accountable by following such policy.126 These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials at
all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not
be enunciated or will not be in force and effect until after Congress
shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics
immediately but, of course, the implementing law will have to be
enacted by Congress, Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought
clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr.
Presiding Officer, did I get the Gentleman correctly as having said
that this is not a self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I
accepted an amendment from Commissioner Regalado, so that the
safeguards on national interest are modified by the clause "as may
be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will
immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier
that it should immediately influence the climate of the conduct
of public affairs but, of course, Congress here may no longer pass
a law revoking it, or if this is approved, revoking this principle, which
is inconsistent with this policy.129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not
await the passing of a statute. As Congress cannot revoke this principle, it
is merely directed to provide for "reasonable safeguards." The complete and
effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory
nature. Since both provisions go hand-in-hand, it is absurd to say that the
broader130 right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions
involving public interest is not enforceable until there is an enabling
law. Respondents cannot thus point to the absence of an implementing
legislation as an excuse in not effecting such policy.
An essential element of these freedoms is to keep open a continuing
dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and
be responsive to the people's will.131Envisioned to be corollary to the twin
rights to information and disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the
people be able to participate? Will the government provide
feedback mechanisms so that the people can participate and
 can react where the existing media facilities are not able to
provide full feedback mechanisms to the government? I
suppose this will be part of the government implementing
operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that
is how these courses take place. There is a message and a
feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one
last sentence?
I think when we talk about the feedback network, we are not
talking about public officials but also network of private
business o[r] community-based organizations that will be
reacting. As a matter of fact, we will put more credence or credibility
on the private network of volunteers and voluntary community-based
organizations. So I do not think we are afraid that there will be
another OMA in the making.132(Emphasis supplied)
The imperative of a public consultation, as a species of the right to
information, is evident in the "marching orders" to respondents. The
mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly provided
by E.O. No. 3.133 The preambulatory clause of E.O. No. 3 declares that there
is a need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process
is that it "should be community-based, reflecting the sentiments, values and
principles important to all Filipinos" and "shall be defined not by the
government alone, nor by the different contending groups only, but by all
Filipinos as one community."134 Included as a component of the
comprehensive peace process is consensus-building and empowerment for
peace, which includes "continuing consultations on both national and local
levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to
effectuate "continuing" consultations, contrary to respondents'
position that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the
PAPP, one of which is to "[c]onduct regular dialogues with the National Peace
Forum (NPF) and other peace partners to seek relevant information,
comments, recommendations as well as to render appropriate and timely
reports on the progress of the comprehensive peace process." 137 E.O. No. 3
mandates the establishment of the NPF to be "the principal forum for the
PAPP to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels,
on the implementation of the comprehensive peace process, as well as for
government[-]civil society dialogue and consensus-building on peace agenda
and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the
peace agenda, as a corollary to the constitutional right to information
and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry
out the pertinent consultation. The furtive process by which the MOA-AD was
designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the
consultation in a particular way or manner. It may, however, require him to
comply with the law and discharge the functions within the authority
granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to
respondents' retort in justifying the denial of petitioners' right to be consulted.
Respondents' stance manifests the manner by which they treat the salient
provisions of E.O. No. 3 on people's participation. Such disregard of the
express mandate of the President is not much different from superficial
conduct toward token provisos that border on classic lip service. 140 It
illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not
tenable under the premises. The argument defies sound reason when
contrasted with E.O. No. 3's explicit provisions on continuing consultation
and dialogue on both national and local levels. The executive order even
recognizes the exercise of the public's right even before the GRP makes
its official recommendations or before the government proffers its definite
propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit relevant
advice, information, comments and recommendations from the people
through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive
privilege in view of their unqualified disclosure of the official copies of the
final draft of the MOA-AD. By unconditionally complying with the Court's
August 4, 2008 Resolution, without a prayer for the document's disclosure in
camera, or without a manifestation that it was complying therewith ex
abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991
declares it a State policy to "require all national agencies and offices to
conduct periodic consultations with appropriate local government units, non-
governmental and people's organizations, and other concerned sectors of the
community before any project or program is implemented in their respective
jurisdictions"142 is well-taken. The LGC chapter on intergovernmental
relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be
implemented by government authorities unlessthe consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented
shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the
Constitution.143 (Italics and underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and
above-quoted provision of the LGU apply only to national programs or
projects which are to be implemented in a particular local community. Among
the programs and projects covered are those that are critical to the
environment and human ecology including those that may call for the eviction
of a particular group of people residing in the locality where these will be
implemented.145 The MOA-AD is one peculiar program that unequivocally
and unilaterally vests ownership of a vast territory to the Bangsamoro
people,146 which could pervasively and drastically result to the diaspora
or displacement of a great number of inhabitants from their total
environment.
With respect to the indigenous cultural communities/indigenous peoples
(ICCs/IPs), whose interests are represented herein by petitioner Lopez and
are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA,
the right to participate fully at all levels of decision-making in matters which
may affect their rights, lives and destinies.147 The MOA-AD, an instrument
recognizing ancestral domain, failed to justify its non-compliance with the
clear-cut mechanisms ordained in said Act,148 which entails, among other
things, the observance of the free and prior informed consent of the
ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise. The recognition of the
ancestral domain is the raison d'etre of the MOA-AD, without which all other
stipulations or "consensus points" necessarily must fail. In proceeding to
make a sweeping declaration on ancestral domain, without complying with
the IPRA, which is cited as one of the TOR of the MOA-AD, respondents
clearly transcended the boundaries of their authority. As it seems, even
the heart of the MOA-AD is still subject to necessary changes to the legal
framework. While paragraph 7 on Governance suspends the effectivity of all
provisions requiring changes to the legal framework, such clause is itself
invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to
public scrutiny and available always to public cognizance. This has to be so if
the country is to remain democratic, with sovereignty residing in the people
and all government authority emanating from them. 149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that
they cannot all be accommodated under the present Constitution and laws.
Respondents have admitted as much in the oral arguments before this Court,
and the MOA-AD itself recognizes the need to amend the existing legal
framework to render effective at least some of its provisions. Respondents,
nonetheless, counter that the MOA-AD is free of any legal infirmity because
any provisions therein which are inconsistent with the present legal
framework will not be effective until the necessary changes to that framework
are made. The validity of this argument will be considered later. For now, the
Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as
presently worded.
In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers
granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before
assessing some of the specific powers that would have been vested in the
BJE, however, it would be useful to turn first to a general idea that serves as
a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly
alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last
mentioned provision, however, that the MOA-AD most clearly uses it to
describe the envisioned relationship between the BJE and the Central
Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall be associative characterized
by shared authority and responsibility with a structure of
governance based on executive, legislative, judicial and
administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established in
a comprehensive peace compact specifying the relationship between
the Central Government and the BJE. (Emphasis and underscoring
supplied)
The nature of the "associative" relationship may have been intended to be
defined more precisely in the still to be forged Comprehensive Compact.
Nonetheless, given that there is a concept of "association" in international
law, and the MOA-AD - by its inclusion of international law instruments in its
TOR- placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use of the term
"associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state, the
associate, delegates certain responsibilities to the other, the
principal, while maintaining its international status as a state.
Free associations represent a middle ground between
integration and independence. x x x150 (Emphasis and
underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the
Federated States of Micronesia (FSM), formerly part of the U.S.-administered
Trust Territory of the Pacific Islands,151 are associated states of the U.S.
pursuant to a Compact of Free Association. The currency in these countries
is the U.S. dollar, indicating their very close ties with the U.S., yet they issue
their own travel documents, which is a mark of their statehood. Their
international legal status as states was confirmed by the UN Security Council
and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the
FSM generally have the capacity to conduct foreign affairs in their own name
and right, such capacity extending to matters such as the law of the sea,
marine resources, trade, banking, postal, civil aviation, and cultural relations.
The U.S. government, when conducting its foreign affairs, is obligated to
consult with the governments of the Marshall Islands or the FSM on matters
which it (U.S. government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands or the FSM, the
U.S. government has the authority and obligation to defend them as if they
were part of U.S. territory. The U.S. government, moreover, has the option of
establishing and using military areas and facilities within these associated
states and has the right to bar the military personnel of any third country from
having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free
association is understood as an international association between
sovereigns. The Compact of Free Association is a treaty which is subordinate
to the associated nation's national constitution, and each party may terminate
the association consistent with the right of independence. It has been said
that, with the admission of the U.S.-associated states to the UN in 1990, the
UN recognized that the American model of free association is actually based
on an underlying status of independence.152
In international practice, the "associated state" arrangement has usually
been used as a transitional device of former colonies on their way to full
independence. Examples of states that have passed through the status of
associated states as a transitional phase are Antigua, St. Kitts-Nevis-
Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since
become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with
the international legal concept of association, specifically the following: the
BJE's capacity to enter into economic and trade relations with foreign
countries, the commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the specialized UN
agencies, and the continuing responsibility of the Central Government over
external defense. Moreover, the BJE's right to participate in Philippine official
missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water
adjacent to or between the islands forming part of the ancestral
domain, resembles the right of the governments of FSM and the Marshall
Islands to be consulted by the U.S. government on any foreign affairs matter
affecting them.
These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or, at
any rate, a status closely approximating it.
The concept of association is not recognized under the present
Constitution
No province, city, or municipality, not even the ARMM, is recognized under
our laws as having an "associative" relationship with the national
government. Indeed, the concept implies powers that go beyond anything
ever granted by the Constitution to any local or regional government. It also
implies the recognition of the associated entity as a state. The Constitution,
however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions,
therefore, already requires for its validity the amendment of constitutional
provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic
of the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim
Mindanao and the Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and
distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework
of this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally different from
that of the ARMM. Indeed, BJE is a state in all but name as it meets the
criteria of a state laid down in the Montevideo Convention,154 namely,
a permanent population, a defined territory, a government, and a capacity to
enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any
portion of Philippine territory, the spirit animating it - which has betrayed
itself by its use of the concept of association - runs counter to the national
sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national
government and the BJE being itself contrary to the present
Constitution, it is not surprising that many of the specific provisions of
the MOA-AD on the formation and powers of the BJE are in conflict with
the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the
autonomous region shall be effective when approved by a majority of the
votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous
region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region.
But even assuming that it is covered by the term "autonomous region" in the
constitutional provision just quoted, the MOA-AD would still be in conflict with
it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the
present geographic area of the ARMM and, in addition, the municipalities of
Lanao del Norte which voted for inclusion in the ARMM during the 2001
plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
automatically part of the BJE without need of another plebiscite, in contrast to
the areas under Categories A and B mentioned earlier in the overview.
That the present components of the ARMM and the above-mentioned
municipalities voted for inclusion therein in 2001, however, does not render
another plebiscite unnecessary under the Constitution, precisely because
what these areas voted for then was their inclusion in the ARMM, not the
BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
 (1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
(Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous
region, the MOA-AD would require an amendment that would expand the
above-quoted provision. The mere passage of new legislation pursuant to
sub-paragraph No. 9 of said constitutional provision would not suffice, since
any new law that might vest in the BJE the powers found in the MOA-AD
must, itself, comply with other provisions of the Constitution. It would not do,
for instance, to merely pass legislation vesting the BJE with treaty-making
power in order to accommodate paragraph 4 of the strand on RESOURCES
which states: "The BJE is free to enter into any economic cooperation and
trade relations with foreign countries: provided, however, that such
relationships and understandings do not include aggression against the
Government of the Republic of the Philippines x x x." Under our constitutional
system, it is only the President who has that power. Pimentel v. Executive
Secretary155 instructs:
In our system of government, the President, being the head of state,
is regarded as the sole organ and authority in external relations
and is the country's sole representative with foreign nations. As
the chief architect of foreign policy, the President acts as the
country's mouthpiece with respect to international affairs. Hence, the
President is vested with the authority to deal with foreign states
and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact
the business of foreign relations. In the realm of treaty-making,
the President has the sole authority to negotiate with other
states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That constitutional
provision states: "The State recognizes and promotes the rights
of indigenous cultural communities within the framework of national unity and
development." (Underscoring supplied) An associative arrangement does not
uphold national unity. While there may be a semblance of unity because of
the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international
practice, has generally been a preparation for independence, is certainly not
conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which are R.A.
No. 9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the
adoption of the definition of "Bangsamoro people" used in the MOA-AD.
Paragraph 1 on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of
conquest or colonization of its descendants whether mixed or of full
blood. Spouses and their descendants are classified as
Bangsamoro. The freedom of choice of the Indigenous people shall
be respected. (Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in
the Article X, Section 3 of the Organic Act, which, rather than lumping
together the identities of the Bangsamoro and other indigenous peoples
living in Mindanao, clearly distinguishes between Bangsamoro people
and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural
community" refers to Filipino citizens residing in the autonomous
region who are:
(a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the
national community; and
 (b) Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social,
economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the
delineation and recognition of ancestral domains. The MOA-AD's manner of
delineating the ancestral domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph 1 of Territory, the Parties simply
agree that, subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land mass as well as
the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain,
the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure,
as illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and
delineation of ancestral domains shall be done in accordance with
the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific
perimeter may be initiated by the NCIP with the consent of the
ICC/IP concerned, or through a Petition for Delineation filed with the
NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain
boundaries including census of all community members therein, shall
be immediately undertaken by the Ancestral Domains Office upon
filing of the application by the ICCs/IPs concerned. Delineation will
be done in coordination with the community concerned and shall at
all times include genuine involvement and participation by the
members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include
the testimony of elders or community under oath, and other
documents directly or indirectly attesting to the possession or
occupation of the area since time immemorial by such ICCs/IPs in
the concept of owners which shall be any one (1) of the following
authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and
institution;
3) Pictures showing long term occupation such as those of
old improvements, burial grounds, sacred places and old
villages;
4) Historical accounts, including pacts and agreements
concerning boundaries entered into by the ICCs/IPs
concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal
forests and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks
such as mountains, rivers, creeks, ridges, hills, terraces and
the like; and
10) Write-ups of names and places derived from the native
dialect of the community.
e) Preparation of Maps. - On the basis of such investigation and the
findings of fact based thereon, the Ancestral Domains Office of the
NCIP shall prepare a perimeter map, complete with technical
descriptions, and a description of the natural features and landmarks
embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of
the preliminary census and a report of investigation, shall be
prepared by the Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall be
posted in a prominent place therein for at least fifteen (15) days. A
copy of the document shall also be posted at the local, provincial and
regional offices of the NCIP, and shall be published in a newspaper
of general circulation once a week for two (2) consecutive weeks to
allow other claimants to file opposition thereto within fifteen (15) days
 from date of such publication: Provided, That in areas where no such
newspaper exists, broadcasting in a radio station will be a valid
substitute: Provided, further, That mere posting shall be deemed
sufficient if both newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication,
and of the inspection process, the Ancestral Domains Office shall
prepare a report to the NCIP endorsing a favorable action upon a
claim that is deemed to have sufficient proof. However, if the proof is
deemed insufficient, the Ancestral Domains Office shall require the
submission of additional evidence: Provided, That the Ancestral
Domains Office shall reject any claim that is deemed patently false or
fraudulent after inspection and verification: Provided, further, That in
case of rejection, the Ancestral Domains Office shall give the
applicant due notice, copy furnished all concerned, containing the
grounds for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are conflicting
claims among ICCs/IPs on the boundaries of ancestral domain
claims, the Ancestral Domains Office shall cause the contending
parties to meet and assist them in coming up with a preliminary
resolution of the conflict, without prejudice to its full adjudication
according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and domestic
statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines
"adopts the generally accepted principles of international law as part of
the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of
Prisons,158 held that the Universal Declaration of Human Rights is part of the
law of the land on account of which it ordered the release on bail of a
detained alien of Russian descent whose deportation order had not been
executed even after two years. Similarly, the Court in Agustin v.
Edu159 applied the aforesaid constitutional provision to the 1968 Vienna
Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of
"peoples," understood not merely as the entire population of a State but also
a portion thereof. In considering the question of whether the people of
Quebec had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC 160 had
occasion to acknowledge that "the right of a people to self-determination is
now so widely recognized in international conventions that the principle has
acquired a status beyond ‘convention' and is considered a general principle
of international law."
Among the conventions referred to are the International Covenant on Civil
and Political Rights161 and the International Covenant on Economic, Social
and Cultural Rights162 which state, in Article 1 of both covenants, that all
peoples, by virtue of the right of self-determination, "freely determine their
political status and freely pursue their economic, social, and cultural
development."
The people's right to self-determination should not, however, be understood
as extending to a unilateral right of secession. A distinction should be made
between the right of internal and external self-determination. REFERENCE
RE SECESSION OF QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that
the right to self-determination of a people is normally fulfilled
through internal self-determination - a people's pursuit of its
political, economic, social and cultural development within the
framework of an existing state. A right to external self-
determination (which in this case potentially takes the form of
the assertion of a right to unilateral secession) arises in only
the most extreme of cases and, even then, under carefully
defined circumstances. x x x
External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the
free association or integration with an independent State or the
emergence into any other political status freely determined by
a peopleconstitute modes of implementing the right of self-
determination by that people. (Emphasis added)
127. The international law principle of self-determination has
evolved within a framework of respect for the territorial integrity
of existing states. The various international documents that support
the existence of a people's right to self-determination also contain
parallel statements supportive of the conclusion that the exercise of
such a right must be sufficiently limited to prevent threats to an
 existing state's territorial integrity or the stability of relations between
sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the
right to external self-determination can arise, namely, where a people is
under colonial rule, is subject to foreign domination or exploitation outside a
colonial context, and - less definitely but asserted by a number of
commentators - is blocked from the meaningful exercise of its right to internal
self-determination. The Court ultimately held that the population of Quebec
had no right to secession, as the same is not under colonial rule or foreign
domination, nor is it being deprived of the freedom to make political choices
and pursue economic, social and cultural development, citing that Quebec is
equitably represented in legislative, executive and judicial institutions within
Canada, even occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the
REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE
LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163 There,
Sweden presented to the Council of the League of Nations the question of
whether the inhabitants of the Aaland Islands should be authorized to
determine by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The Council,
before resolving the question, appointed an International Committee
composed of three jurists to submit an opinion on the preliminary issue of
whether the dispute should, based on international law, be entirely left to the
domestic jurisdiction of Finland. The Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international
treaties, the right of disposing of national territory is essentially
an attribute of the sovereignty of every State. Positive
International Law does not recognize the right of national
groups, as such, to separate themselves from the State of
which they form part by the simple expression of a wish, any
more than it recognizes the right of other States to claim such a
separation. Generally speaking, the grant or refusal of the right
to a portion of its population of determining its own political
fate by plebiscite or by some other method, is, exclusively, an
attribute of the sovereignty of every State which is definitively
constituted. A dispute between two States concerning such a
question, under normal conditions therefore, bears upon a question
which International Law leaves entirely to the domestic jurisdiction of
one of the States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the risk
of creating difficulties and a lack of stability which would not only be
contrary to the very idea embodied in term "State," but would also
endanger the interests of the international community. If this right is
not possessed by a large or small section of a nation, neither can it
be held by the State to which the national group wishes to be
attached, nor by any other State. (Emphasis and underscoring
supplied)
The Committee held that the dispute concerning the Aaland Islands did not
refer to a question which is left by international law to the domestic
jurisdiction of Finland, thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general rule, however,
was a very narrow one, namely, the Aaland Islands agitation originated at a
time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so abnormal
that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil
war, the legitimacy of the Finnish national government was disputed by a
large section of the people, and it had, in fact, been chased from the capital
and forcibly prevented from carrying out its duties. The armed camps and the
police were divided into two opposing forces. In light of these circumstances,
Finland was not, during the relevant time period, a "definitively constituted"
sovereign state. The Committee, therefore, found that Finland did not
possess the right to withhold from a portion of its population the option to
separate itself - a right which sovereign nations generally have with respect
to their own populations.
Turning now to the more specific category of indigenous peoples, this term
has been used, in scholarship as well as international, regional, and state
practices, to refer to groups with distinct cultures, histories, and connections
to land (spiritual and otherwise) that have been forcibly incorporated into a
larger governing society. These groups are regarded as "indigenous" since
they are the living descendants of pre-invasion inhabitants of lands now
dominated by others. Otherwise stated, indigenous peoples, nations, or
communities are culturally distinctive groups that find themselves engulfed by
settler societies born of the forces of empire and conquest. 164 Examples of
groups who have been regarded as indigenous peoples are the Maori of New
Zealand and the aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within
states do not have a general right to independence or secession from those
states under international law, 165 but they do have rights amounting to what
was discussed above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General
Assembly adopted the United Nations Declaration on the Rights of
Indigenous Peoples (UN DRIP) through General Assembly Resolution
61/295. The vote was 143 to 4, the Philippines being included among those
in favor, and the four voting against being Australia, Canada, New Zealand,
and the U.S. The Declaration clearly recognized the right of indigenous
peoples to self-determination, encompassing the right to autonomy or
self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue
of that right they freely determine their political status and freely
pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters
relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their
distinct political, legal, economic, social and cultural institutions,
while retaining their right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse pertaining to
indigenous peoples, has been understood as equivalent to "internal self-
determination."166 The extent of self-determination provided for in the UN
DRIP is more particularly defined in its subsequent articles, some of which
are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of,
and redress for:
(a) Any action which has the aim or effect of depriving them of
their integrity as distinct peoples, or of their cultural values or
ethnic identities;
(b) Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or
effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial
or ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including, inter
alia, in the areas of education, employment, vocational training and
retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate,
special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid to
the rights and special needs of indigenous elders, women, youth,
children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or
otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or use,
as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with
due respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of
indigenous peoples, unless justified by a relevant public interest or
otherwise freely agreed with or requested by the indigenous peoples
concerned.
2. States shall undertake effective consultations with the indigenous
peoples concerned, through appropriate procedures and in particular
through their representative institutions, prior to using their lands or
territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands or
territories and other resources.
2. States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior to
the approval of any project affecting their lands or territories and
other resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress
for any such activities, and appropriate measures shall be taken to
mitigate adverse environmental, economic, social, cultural or spiritual
impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance
and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other
constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or
eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall
take the appropriate measures, including legislative measures, to
achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights,
must now be regarded as embodying customary international law - a
question which the Court need not definitively resolve here - the obligations
enumerated therein do not strictly require the Republic to grant the
Bangsamoro people, through the instrumentality of the BJE, the particular
rights and powers provided for in the MOA-AD. Even the more specific
provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.
There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security force.
Indeed, Article 8 presupposes that it is the State which will provide protection
for indigenous peoples against acts like the forced dispossession of their
lands - a function that is normally performed by police officers. If the
protection of a right so essential to indigenous people's identity is
acknowledged to be the responsibility of the State, then surely the protection
of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric space. What it
upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,
territories and resources which they have traditionally owned, occupied or
otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to
autonomy, does not obligate States to grant indigenous peoples the near-
independent status of an associated state. All the rights recognized in that
document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for
any State, people, group or person any right to engage in any activity
or to perform any act contrary to the Charter of the United Nations
or construed as authorizing or encouraging any action which
would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant
to Article II, Section 2 of the Constitution, it would not suffice to uphold the
validity of the MOA-AD so as to render its compliance with other laws
unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions
that cannot be reconciled with the Constitution and the laws as
presently worded. Respondents proffer, however, that the signing of the
MOA-AD alone would not have entailed any violation of law or grave abuse
of discretion on their part, precisely because it stipulates that the provisions
thereof inconsistent with the laws shall not take effect until these laws are
amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE
quoted earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes
to the legal framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the
MOA-AD from coming into force until the necessary changes to the legal
framework are effected. While the word "Constitution" is not mentioned
in the provision now under consideration or anywhere else in the MOA-
AD, the term "legal framework" is certainly broad enough to include the
Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere
act of incorporating in the MOA-AD the provisions thereof regarding the
associative relationship between the BJE and the Central Government, have
already violated the Memorandum of Instructions From The President dated
March 1, 2001, which states that the "negotiations shall be conducted in
accordance with x x x the principles of the sovereignty and territorial
integrityof the Republic of the Philippines." (Emphasis supplied) Establishing
an associative relationship between the BJE and the Central Government is,
for the reasons already discussed, a preparation for independence, or worse,
an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD
is defective because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF
is founded on E.O. No. 3, Section 5(c), which states that there shall be
established Government Peace Negotiating Panels for negotiations with
different rebel groups to be "appointed by the President as her official
emissaries to conduct negotiations, dialogues, and face-to-face discussions
with rebel groups." These negotiating panels are to report to the President,
through the PAPP on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the
Moro Problem through its negotiations with the MILF, was not restricted by
E.O. No. 3 only to those options available under the laws as they presently
stand. One of the components of a comprehensive peace process, which
E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit of
social, economic, and political reforms which may require new legislation or
even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates
Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the
comprehensive peace process comprise the processes known as the
"Paths to Peace". These component processes are interrelated and
not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall
include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS.
This component involves the vigorous implementation of various
policies, reforms, programs and projects aimed at addressing
the root causes of internal armed conflicts and social unrest.
This may require administrative action, new legislation or even
constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of
respondents to address, pursuant to this provision of E.O. No. 3, the root
causes of the armed conflict in Mindanao. The E.O. authorized them to "think
outside the box," so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic, and political
reforms which cannot, however, all be accommodated within the present
legal framework, and which thus would require new legislation and
constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop
here, because it must be asked whether the President herself may
exercise the power delegated to the GRP Peace Panel under E.O. No. 3,
Sec. 4(a).
The President cannot delegate a power that she herself does not possess.
May the President, in the course of peace negotiations, agree to pursue
reforms that would require new legislation and constitutional amendments, or
should the reforms be restricted only to those solutions which the present
laws allow? The answer to this question requires a discussion of the extent
of the President's power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel
groups is not explicitly mentioned in the Constitution does not mean that she
has no such authority. In Sanlakas v. Executive Secretary,168 in issue was the
authority of the President to declare a state of rebellion - an authority which is
not expressly provided for in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her
thesis into jurisprudence. There, the Court, by a slim 8-7 margin,
upheld the President's power to forbid the return of her exiled
predecessor. The rationale for the majority's ruling rested on the
President's
. . . unstated residual powers which are implied from the
grant of executive power and which are necessary for
her to comply with her duties under the
Constitution. The powers of the President are not limited
to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent
of the members of the Constitutional Commission of 1986 to
limit the powers of the President as a reaction to the abuses
under the regime of Mr. Marcos, for the result was a
limitation of specific powers of the President, particularly
those relating to the commander-in-chief clause, but not a
diminution of the general grant of executive power.
Thus, the President's authority to declare a state of rebellion
springs in the main from her powers as chief executive and, at
the same time, draws strength from her Commander-in-Chief
powers. x x x (Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief. As
Chief Executive, the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the more specific duty to
prevent and suppress rebellion and lawless violence.169
As the experience of nations which have similarly gone through internal
armed conflict will show, however, peace is rarely attained by simply pursuing
a military solution. Oftentimes, changes as far-reaching as a fundamental
reconfiguration of the nation's constitutional structure is required. The
observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last ten
years, conflict cessation without modification of the political
environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building, is
unlikely to succeed. On average, more than 50 percent of states
emerging from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or limited
democracies.
The design of a constitution and its constitution-making process can
play an important role in the political and governance transition.
Constitution-making after conflict is an opportunity to create a
common vision of the future of a state and a road map on how to get
there. The constitution can be partly a peace agreement and partly a
framework setting up the rules by which the new democracy will
operate.170
In the same vein, Professor Christine Bell, in her article on the nature and
legal status of peace agreements, observed that the typical way that peace
agreements establish or confirm mechanisms for demilitarization and
demobilization is by linking them to new constitutional
structures addressing governance, elections, and legal and human rights
institutions.171
In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution on autonomous
regions172 is the framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between the GRP and the
MNLF, signed by then Undersecretary of National Defense Carmelo Z.
Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some
more questions, I will reserve my right to ask them if they are not
covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy
already exists in the Muslim region; it is working very well; it has,
in fact, diminished a great deal of the problems. So, my question
is: since that already exists, why do we have to go into
something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo.
Commissioner Yusup Abubakar is right that certain definite steps
have been taken to implement the provisions of the Tripoli
 Agreement with respect to an autonomous region in Mindanao.
This is a good first step, but there is no question that this is
merely a partial response to the Tripoli Agreement itself and to
the fuller standard of regional autonomy contemplated in that
agreement, and now by state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant
to them have, to the credit of their drafters, been partly successful.
Nonetheless, the Filipino people are still faced with the reality of an on-going
conflict between the Government and the MILF. If the President is to be
expected to find means for bringing this conflict to an end and to achieve
lasting peace in Mindanao, then she must be given the leeway to explore, in
the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to
conduct peace negotiations with rebel groups, the President is in a singular
position to know the precise nature of their grievances which, if resolved,
may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that
she considers viable, but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon
them pursuant to the legal procedures for constitutional amendment and
revision. In particular, Congress would have the option, pursuant to Article
XVII, Sections 1 and 3 of the Constitution, to propose the recommended
amendments or revision to the people, call a constitutional convention, or
submit to the electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers
may be exercised only by Congress, a Constitutional Convention, or the
people through initiative and referendum - she may submit proposals for
constitutional change to Congress in a manner that does not involve the
arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President
Marcos' act of directly submitting proposals for constitutional amendments to
a referendum, bypassing the interim National Assembly which was the body
vested by the 1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never convened the
interim National Assembly. The majority upheld the President's act, holding
that "the urges of absolute necessity" compelled the President as the agent
of the people to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling, Justices Teehankee
and Muñoz Palma vigorously dissented. The Court's concern at present,
however, is not with regard to the point on which it was then divided in that
controversial case, but on that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he
disagreed that the President may directly submit proposed constitutional
amendments to a referendum, implicit in his opinion is a recognition that he
would have upheld the President's action along with the majority had the
President convened the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of each
and prescribes the manner of the exercise of such powers, and the
constituent power has not been granted to but has been withheld
from the President or Prime Minister, it follows that the President's
questioned decrees proposing and submitting constitutional
amendments directly to the people (without the intervention of the
interim National Assembly in whom the power is expressly
vested) are devoid of constitutional and legal basis."176 (Emphasis
supplied)
From the foregoing discussion, the principle may be inferred that the
President - in the course of conducting peace negotiations - may validly
consider implementing even those policies that require changes to the
Constitution, but she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body
were assumed as a certainty.
Since, under the present Constitution, the people also have the power to
directly propose amendments through initiative and referendum, the
President may also submit her recommendations to the people, not as a
formal proposal to be voted on in a plebiscite similar to what President
Marcos did in Sanidad, but for their independent consideration of whether
these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the
President's suggestions to the people, for any further involvement in the
process of initiative by the Chief Executive may vitiate its character as a
genuine "people's initiative." The only initiative recognized by the Constitution
is that which truly proceeds from the people. As the Court stated in Lambino
v. COMELEC:177
"The Lambino Group claims that their initiative is the ‘people's voice.'
However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that ‘ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms.' The Lambino Group thus admits that their
 ‘people's' initiative is an ‘unqualified support to the agenda' of the
incumbent President to change the Constitution. This forewarns the
Court to be wary of incantations of ‘people's voice' or ‘sovereign will'
in the present initiative."
It will be observed that the President has authority, as stated in her oath of
office,178 only to preserve and defend the Constitution. Such presidential
power does not, however, extend to allowing her to change the Constitution,
but simply to recommend proposed amendments or revision. As long as she
limits herself to recommending these changes and submits to the proper
procedure for constitutional amendments and revision, her mere
recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice for
Presidents in this jurisdiction to propose new legislation. One of the more
prominent instances the practice is usually done is in the yearly State of the
Nation Address of the President to Congress. Moreover, the annual general
appropriations bill has always been based on the budget prepared by the
President, which - for all intents and purposes - is a proposal for new
legislation coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the above-
discussed standards
Given the limited nature of the President's authority to propose constitutional
amendments, she cannot guaranteeto any third party that the required
amendments will eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals as
recommendations either to Congress or the people, in whom constituent
powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all
provisions thereof which cannot be reconciled with the present Constitution
and laws "shall come into force upon signing of a Comprehensive Compact
and upon effecting the necessary changes to the legal framework." This
stipulation does not bear the marks of a suspensive condition - defined in
civil law as a future and uncertain event - but of a term. It is not a question
of whether the necessary changes to the legal framework will be effected,
but when. That there is no uncertainty being contemplated is plain from what
follows, for the paragraph goes on to state that the contemplated changes
shall be "with due regard to non derogation of prior agreements and within
the stipulated timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect
the changes to the legal framework contemplated in the MOA-AD - which
changes would include constitutional amendments, as discussed earlier. It
bears noting that,
By the time these changes are put in place, the MOA-AD itself would be
counted among the "prior agreements" from which there could be no
derogation.
What remains for discussion in the Comprehensive Compact would merely
be the implementing details for these "consensus points" and, notably,
the deadline for effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the
limits of the President's authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and the laws
of the Republic of the Philippines will certainly be adjusted to conform to all
the "consensus points" found in the MOA-AD. Hence, it must be struck down
as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar
provision appearing in the 1996 final peace agreement between the MNLF
and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase Icovered a three-year transitional period
involving the putting up of new administrative structures through Executive
Order, such as the Special Zone of Peace and Development (SZOPAD) and
the Southern Philippines Council for Peace and Development (SPCPD),
while Phase II covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which was then
the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the parties. To
that extent, they are similar to the provisions of the MOA-AD. There is,
however, a crucial difference between the two agreements. While the MOA-
AD virtually guarantees that the "necessary changes to the legal
framework" will be put in place, the GRP-MNLF final peace agreement
states thus: "Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the
amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a
binding international law obligation on the part of the Philippines to change its
Constitution in conformity thereto, on the ground that it may be considered
either as a binding agreement under international law, or a unilateral
declaration of the Philippine government to the international community that it
would grant to the Bangsamoro people all the concessions therein stated.
Neither ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have
included foreign dignitaries as signatories. In addition, representatives of
other nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have had
the status of a binding international agreement had it been signed. An
examination of the prevailing principles in international law, however, leads to
the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty 180 (the
Lomé Accord case) of the Special Court of Sierra Leone is enlightening. The
Lomé Accord was a peace agreement signed on July 7, 1999 between the
Government of Sierra Leone and the Revolutionary United Front (RUF), a
rebel group with which the Sierra Leone Government had been in armed
conflict for around eight years at the time of signing. There were non-
contracting signatories to the agreement, among which were the Government
of the Togolese Republic, the Economic Community of West African States,
and the UN.
On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another agreement
was entered into by the UN and that Government whereby the Special Court
of Sierra Leone was established. The sole purpose of the Special Court, an
international court, was to try persons who bore the greatest responsibility for
serious violations of international humanitarian law and Sierra Leonean law
committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for the full
pardon of the members of the RUF with respect to anything done by them in
pursuit of their objectives as members of that organization since the conflict
began.
In the Lomé Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries of
the amnesty provided therein, citing, among other things, the participation of
foreign dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that
the Lome Accord is not a treaty and that it can only create binding obligations
and rights between the parties in municipal law, not in international law.
Hence, the Special Court held, it is ineffective in depriving an international
court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of
an internal armed conflict it is easy to assume and to argue with
some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document formalizing
the settlement is signed by foreign heads of state or their
representatives and representatives of international
organizations, means the agreement of the parties is
internationalized so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the
conflict and the mediator or facilitator of the settlement, or persons or
bodies under whose auspices the settlement took place but who are
not at all parties to the conflict, are not contracting parties and who
do not claim any obligation from the contracting parties or incur any
obligation from the settlement.
41. In this case, the parties to the conflict are the lawful
authority of the State and the RUF which has no status of
statehood and is to all intents and purposes a faction within the
state. The non-contracting signatories of the Lomé Agreement
were moral guarantors of the principle that, in the terms of
Article XXXIV of the Agreement, "this peace agreement is
implemented with integrity and in good faith by both parties".
The moral guarantors assumed no legal obligation. It is recalled
that the UN by its representative appended, presumably for
avoidance of doubt, an understanding of the extent of the agreement
to be implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create
rights and obligations regulated by international law so that a breach
of its terms will be a breach determined under international law which
will also provide principle means of enforcement. The Lomé
Agreement created neither rights nor obligations capable of
being regulated by international law. An agreement such as the
Lomé Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of
peace that the international community acting through the
Security Council may take note of. That, however, will not
convert it to an international agreement which creates an
 obligation enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace agreement
resulting in resumption of internal armed conflict or creating a threat
to peace in the determination of the Security Council may indicate a
reversal of the factual situation of peace to be visited with possible
legal consequences arising from the new situation of conflict created.
Such consequences such as action by the Security Council pursuant
to Chapter VII arise from the situation and not from the agreement,
nor from the obligation imposed by it. Such action cannot be
regarded as a remedy for the breach. A peace agreement which
settles an internal armed conflict cannot be ascribed the same
status as one which settles an international armed conflict
which, essentially, must be between two or more warring States.
The Lomé Agreement cannot be characterised as an
international instrument. x x x" (Emphasis, italics and underscoring
supplied)
Similarly, that the MOA-AD would have been signed by representatives of
States and international organizations not parties to the Agreement would not
have sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to
a unilateral declaration of the Philippine State, binding under international
law, that it would comply with all the stipulations stated therein, with the result
that it would have to amend its Constitution accordingly regardless of the true
will of the people. Cited as authority for this view is Australia v.
France,181 also known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of
France's nuclear tests in the South Pacific. France refused to appear in the
case, but public statements from its President, and similar statements from
other French officials including its Minister of Defence, that its 1974 series of
atmospheric tests would be its last, persuaded the ICJ to dismiss the
case.182 Those statements, the ICJ held, amounted to a legal undertaking
addressed to the international community, which required no acceptance
from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended
to be bound to the international community in issuing its public statements,
viz:
43. It is well recognized that declarations made by way
of unilateral acts, concerning legal or factual situations, may have the
effect of creating legal obligations. Declarations of this kind may be,
and often are, very specific. When it is the intention of the State
making the declaration that it should become bound according
to its terms, that intention confers on the declaration the
character of a legal undertaking, the State being thenceforth
legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and
with an intent to be bound, even though not made within the context
of international negotiations, is binding. In these circumstances,
nothing in the nature of a quid pro quo nor any subsequent
acceptance of the declaration, nor even any reply or reaction from
other States, is required for the declaration to take effect, since such
a requirement would be inconsistent with the strictly unilateral nature
of the juridical act by which the pronouncement by the State was
made.
44. Of course, not all unilateral acts imply obligation; but a State
may choose to take up a certain position in relation to a
particular matter with the intention of being bound-the intention
is to be ascertained by interpretation of the act. When States
make statements by which their freedom of action is to be limited, a
restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests
would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention effectively
to terminate these tests. It was bound to assume that other
States might take note of these statements and rely on their
being effective. The validity of these statements and their legal
consequences must be considered within the general
framework of the security of international intercourse, and the
confidence and trust which are so essential in the relations among
States. It is from the actual substance of these statements, and
from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects
of these statements are clear and they were addressed to the
international community as a whole, and the Court holds that
they constitute an undertaking possessing legal effect. The
Court considers *270 that the President of the Republic, in deciding
upon the effective cessation of atmospheric tests, gave an
undertaking to the international community to which his words were
addressed. x x x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a
state representative may be construed as a unilateral declaration only when
the following conditions are present: the statements were clearly addressed
to the international community, the state intended to be bound to that
community by its statements, and that not to give legal effect to those
statements would be detrimental to the security of international intercourse.
Plainly, unilateral declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a
later case decided by the ICJ entitled Burkina Faso v. Mali,183 also known as
the Case Concerning the Frontier Dispute. The public declaration subject of
that case was a statement made by the President of Mali, in an interview by
a foreign press agency, that Mali would abide by the decision to be issued by
a commission of the Organization of African Unity on a frontier dispute then
pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's
President was not a unilateral act with legal implications. It clarified that its
ruling in the Nuclear Tests case rested on the peculiar circumstances
surrounding the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act,
account must be taken of all the factual circumstances in which the
act occurred. For example, in the Nuclear Tests cases, the Court
took the view that since the applicant States were not the only
ones concerned at the possible continuance of atmospheric
testing by the French Government, that Government's unilateral
declarations had ‘conveyed to the world at large, including the
Applicant, its intention effectively to terminate these
tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the
particular circumstances of those cases, the French
Government could not express an intention to be bound
otherwise than by unilateral declarations. It is difficult to see
how it could have accepted the terms of a negotiated solution
with each of the applicants without thereby jeopardizing its
contention that its conduct was lawful. The circumstances of
the present case are radically different. Here, there was nothing
to hinder the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of
African Unity Mediation Commission by the normal method: a
formal agreement on the basis of reciprocity. Since no agreement
of this kind was concluded between the Parties, the Chamber finds
that there are no grounds to interpret the declaration made by Mali's
head of State on 11 April 1975 as a unilateral act with legal
implications in regard to the present case. (Emphasis and
underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to the
international community. The Philippine panel did not draft the same with the
clear intention of being bound thereby to the international community as a
whole or to any State, but only to the MILF. While there were States and
international organizations involved, one way or another, in the negotiation
and projected signing of the MOA-AD, they participated merely as witnesses
or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case,
the mere fact that in addition to the parties to the conflict, the peace
settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized so as to
create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to
give legal effect to such commitments would not be detrimental to the
security of international intercourse - to the trust and confidence essential in
the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are
closer to that of Burkina Faso wherein, as already discussed, the Mali
President's statement was not held to be a binding unilateral declaration by
the ICJ. As in that case, there was also nothing to hinder the Philippine
panel, had it really been its intention to be bound to other States, to manifest
that intention by formal agreement. Here, that formal agreement would have
come about by the inclusion in the MOA-AD of a clear commitment to be
legally bound to the international community, not just the MILF, and by an
equally clear indication that the signatures of the participating states-
representatives would constitute an acceptance of that commitment. Entering
into such a formal agreement would not have resulted in a loss of face for the
Philippine government before the international community, which was one of
the difficulties that prevented the French Government from entering into a
formal agreement with other countries. That the Philippine panel did not enter
into such a formal agreement suggests that it had no intention to be bound to
the international community. On that ground, the MOA-AD may not
be considered a unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents' almost consummated act
of guaranteeing amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The grave abuse lies
not in the fact that they considered, as a solution to the Moro Problem, the
creation of a state within a state, but in their brazen willingness
to guarantee that Congress and the sovereign Filipino people would
give their imprimatur to their solution. Upholding such an act would
amount to authorizing a usurpation of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the
outcome of the amendment process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can
change the Constitution in any it wants, so long as the change is not
inconsistent with what, in international law, is known as Jus
Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult
the local government units or communities affected constitutes a departure
by respondents from their mandate under E.O. No. 3. Moreover, respondents
exceeded their authority by the mere act of guaranteeing amendments to the
Constitution. Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public
interest or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisite locus
standi in keeping with the liberal stance adopted in David v. Macapagal-
Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD
and the eventual dissolution of the GRP Peace Panel mooted the present
petitions, the Court finds that the present petitions provide an exception to
the "moot and academic" principle in view of (a) the grave violation of the
Constitution involved; (b) the exceptional character of the situation and
paramount public interest; (c) the need to formulate controlling principles to
guide the bench, the bar, and the public; and (d) the fact that the case is
capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to
carry out the GRP-MILF Tripoli Agreement on Peace signed by the
government and the MILF back in June 2001. Hence, the present MOA-AD
can be renegotiated or another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been
rendered moot in view of the respondents' action in providing the Court and
the petitioners with the official copy of the final draft of the MOA-AD and its
annexes.
The people's right to information on matters of public concern under Sec. 7,
Article III of the Constitution is in splendid symmetry with the state policy of
full public disclosure of all its transactions involving public interest under Sec.
28, Article II of the Constitution. The right to information guarantees the right
of the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands. The complete and
effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-executory
nature, subject only to reasonable safeguards or limitations as may be
provided by law.
The contents of the MOA-AD is a matter of paramount public concern
involving public interest in the highest order. In declaring that the right to
information contemplates steps and negotiations leading to the
consummation of the contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue
or process of communication between the government and the people.
Corollary to these twin rights is the design for feedback mechanisms. The
right to public consultation was envisioned to be a species of these public
rights.
At least three pertinent laws animate these constitutional imperatives and
justify the exercise of the people's right to be consulted on relevant matters
relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations
on both national and local levels and for a principal forum for consensus-
building. In fact, it is the duty of the Presidential Adviser on the Peace
Process to conduct regular dialogues to seek relevant information,
comments, advice, and recommendations from peace partners and
concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires
all national offices to conduct consultations before any project or program
critical to the environment and human ecology including those that may call
for the eviction of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997
provides for clear-cut procedure for the recognition and delineation of
ancestral domain, which entails, among other things, the observance of the
free and prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise.
While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and
intervening petitions are GIVEN DUE COURSE and hereby GRANTED.

The invocation of the doctrine of executive privilege as a defense to the
general right to information or the specific right to consultation is untenable.
The various explicit legal provisions fly in the face of executive secrecy. In
any event, respondents effectively waived such defense after it
unconditionally disclosed the official copies of the final draft of the MOA-AD,
for judicial compliance and public scrutiny.
The Memorandum of Agreement on the Ancestral Domain Aspect of the
GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to law
and the Constitution.
SO ORDERED.

In sum, the Presidential Adviser on the Peace Process committed grave

abuse of discretion when he failed to carry out the pertinent consultation
process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic
Act No. 8371. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to a
whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It
illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws.
Not only its specific provisions but the very concept underlying them, namely,
the associative relationship envisioned between the GRP and the
BJE, are unconstitutional, for the concept presupposes that the associated
entity is a state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between
the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions From The President dated March 1, 2001,
addressed to the government peace panel. Moreover, as the clause is
worded, it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP
Peace Panel nor the President herself is authorized to make such a
guarantee. Upholding such an act would amount to authorizing a usurpation
of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for
the only way that the Executive can ensure the outcome of the amendment
process is through an undue influence or interference with that process.
 DEL CASTILLO,

ALBERTO ROMULO, in his capacity as ABAD,

Executive Secretary, and BLAS F. OPLE, in
his capacity as Secretary of Foreign Affairs, VILLARAMA, JR.,

Respondents. PEREZ,

MENDOZA, and

SERENO, JJ.

Promulgated:

February 1, 2011

BAYAN MUNA, as represented by Rep. G.R. No. 159618 x-----------------------------------------------------------------------------------------x

SATUR OCAMPO, Rep. CRISPIN BELTRAN,
and Rep. LIZA L. MAZA,
DECISION
Petitioner, Present:
VELASCO, JR., J.:

CORONA, C.J.,
The Case
CARPIO,

CARPIO MORALES,
This petition[1] for certiorari, mandamus and prohibition under Rule 65
VELASCO, JR., assails and seeks to nullify the Non-Surrender Agreement concluded by and
- versus - between the Republic of the Philippines (RP) and the United States of
NACHURA, America (USA).

LEONARDO-DE CASTRO,
The Facts
BRION,

PERALTA,
Petitioner Bayan Muna is a duly registered party-list group
BERSAMIN,
established to represent the marginalized sectors of society. Respondent
Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the
period material to this case. Respondent Alberto Romulo was impleaded in
his capacity as then Executive Secretary.[2]
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome
[3]
Statute establishing the International Criminal Court (ICC) with the power to
exercise its jurisdiction over persons for the most serious crimes of
international concern x x x and shall be complementary to the national
criminal jurisdictions.[4] The serious crimes adverted to cover those
considered grave under international law, such as genocide, crimes against
humanity, war crimes, and crimes of aggression.[5]
On December 28, 2000, the RP, through Charge dAffaires Enrique A.
Manalo, signed the Rome Statute which, by its terms, is subject to
ratification, acceptance or approval by the signatory states. [6] As of the filing
of the instant petition, only 92 out of the 139 signatory countries appear to
have completed the ratification, approval and concurrence
process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US
Embassy Note No. 0470 to the Department of Foreign Affairs (DFA)
proposing the terms of the non-surrender bilateral agreement (Agreement,
hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N
BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople,
agreed with and accepted the US proposals embodied under the US
Embassy Note adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it refers to and
defines as persons of the RP and US from frivolous and harassment suits
that might be brought against them in international tribunals. [8] It is reflective
of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements
have been effected by and between the US and 33 other countries.[9]
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are
current or former Government officials, employees (including
contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the
other shall not, absent the express consent of the first Party,
(a) be surrendered or transferred by any means to
any international tribunal for any purpose, unless
such tribunal has been established by the UN
Security Council, or
(b) be surrendered or transferred by any means to
any other entity or third country, or expelled to a
third country, for the purpose of surrender to or
transfer to any international tribunal, unless such
tribunal has been established by the UN
Security Council.
3. When the [US] extradites, surrenders, or
otherwise transfers a person of the Philippines to a third
country, the [US] will not agree to the surrender or transfer of
that person by the third country to any international tribunal,
unless such tribunal has been established by the UN
Security Council, absent the express consent of the
Government of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or
otherwise transfers a person of the [USA] to a third country,
the [GRP] will not agree to the surrender or transfer of that
person by the third country to any international tribunal,
unless such tribunal has been established by the UN
Security Council, absent the express consent of the
Government of the [US].
5. This Agreement shall remain in force until one
year after the date on which one party notifies the other of its
 intent to terminate the Agreement. The provisions of this
Agreement shall continue to apply with respect to any act
occurring, or any allegation arising, before the effective date
of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo
on the status of the non-surrender agreement, Ambassador Ricciardone
replied in his letter of October 28, 2003 that the exchange of diplomatic notes
constituted a legally binding agreement under international law; and that,
under US law, the said agreement did not require the advice and consent of
the US Senate.[10]
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]

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
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 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 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 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]
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.

By their nature, treaties and international agreements actually have a

Petitioner, we believe, labors under the erroneous impression that
limiting effect on the otherwise encompassing and absolute nature of
the Agreement would allow Filipinos and Americans committing high crimes
sovereignty. By their voluntary act, nations may decide to surrender or waive
of international concern to escape criminal trial and punishment. This is
some aspects of their state power or agree to limit the exercise of their
manifestly incorrect. Persons who may have committed acts penalized under
otherwise exclusive and absolute jurisdiction. The usual underlying
the Rome Statute can be prosecuted and punished in the Philippines or in
consideration in this partial surrender may be the greater benefits derived
the US; or with the consent of the RP or the US, before the ICC, assuming,
from a pact or a reciprocal undertaking of one contracting party to grant the
for the nonce, that all the formalities necessary to bind both countries to the
same privileges or immunities to the other. On the rationale that the
Rome Statute have been met. For perspective, what
Philippines has adopted the generally accepted principles of international law
the Agreement contextually prohibits is the surrender by either party of
as part of the law of the land, a portion of sovereignty may be waived without
individuals to international tribunals, like the ICC, without the consent of the
violating the Constitution.[61] Such waiver does not amount to an
other party, which may desire to prosecute the crime under its existing
unconstitutional diminution or deprivation of jurisdiction of Philippine courts. [62]
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
Agreement Not Immoral/Not at Variance
with Principles of International Law
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]
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 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 Prohibitions or Restrictions on the Use of Mines,
the high crimes mentioned earlier. In fact, as early as October 2006, Booby-Traps and Other Devices as amended at
the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Geneva on 3 May 1996 (Protocol II as amended on
Part I, Title 18 of the United States Code Annotated (USCA) provides for the 3 May 1996), when the United States is a party to
criminal offense of war crimes which is similar to the war crimes found in both such Protocol, willfully kills or causes serious injury
the Rome Statute and RA 9851, thus: to civilians.[80]

(a) Offense Whoever, whether inside or outside the United

Similarly, in December 2009, the US adopted a law that criminalized
States, commits a war crime, in any of the
genocide, to wit:
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. 1091. Genocide

(b) Circumstances The circumstances referred to in

subsection (a) are that the person committing such war
(a) Basic Offense Whoever, whether in the
crime or the victim of such war crime is a member of the
time of peace or in time of war and with specific
Armed Forces of the United States or a national of the
intent to destroy, in whole or in substantial part, a
United States (as defined in Section 101 of the
national, ethnic, racial or religious group as such
Immigration and Nationality Act).
(1) kills members of that group;
(c) Definition As used in this Section the term war crime
means any conduct (2) causes serious bodily injury to members of
that group;
(1) Defined as a grave breach in any of the
international conventions signed at Geneva 12 (3) causes the permanent impairment of the
August 1949, or any protocol to such convention to mental faculties of members of the group
which the United States is a party; through drugs, torture, or similar techniques;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex (4) subjects the group to conditions of life that
to the Hague Convention IV, Respecting the Laws are intended to cause the physical destruction of
and Customs of War on Land, signed 18 October the group in whole or in part;
1907;
(5) imposes measures intended to prevent
(3) Which constitutes a grave breach of common Article births within the group; or
3 (as defined in subsection [d]) when committed in
the context of and in association with an armed (6) transfers by force children of the group to
conflict not of an international character; or another group;

(4) Of a person who, in relation to an armed conflict shall be punished as provided in subsection (b).[81]
and contrary to the provisions of the Protocol on
 following acts committed with intent with specific intent to destroy, in whole or
to destroy, in whole or in part, a in substantial part, a national, ethnic,
Arguing further, another view has been advanced that the current US national, ethnical, racial or religious racial or religious group as such
laws do not cover every crime listed within the jurisdiction of the ICC and that
group, as such:
there is a gap between the definitions of the different crimes under (1) kills members of that group;
the US laws versus the Rome Statute. The view used a report written by (a) Killing members of the group;
Victoria K. Holt and Elisabeth W. Dallas, entitled On Trial: The US Military (2) causes serious bodily injury to
and the International Criminal Court, as its basis. (b) Causing serious bodily or members of that group;
mental harm to members of the
group; (3) causes the permanent impairment of
At the outset, it should be pointed out that the report used may not have any
the mental faculties of members
weight or value under international law. Article 38 of the Statute of the
(c) Deliberately inflicting on the of the group through drugs,
International Court of Justice (ICJ) lists the sources of international law, as
follows: (1) international conventions, whether general or particular, group conditions of life torture, or similar techniques;
establishing rules expressly recognized by the contesting states; (2) calculated to bring about its
international custom, as evidence of a general practice accepted as law; (3) physical destruction in whole or (4) subjects the group to conditions of life
the general principles of law recognized by civilized nations; and (4) subject in part; that are intended to cause the
to the provisions of Article 59, judicial decisions and the teachings of the physical destruction of the group
most highly qualified publicists of the various nations, as subsidiary (d) Imposing measures intended to in whole or in part;
means for the determination of rules of law. The report does not fall under prevent births within the group;
any of the foregoing enumerated sources. It cannot even be considered as (5) imposes measures intended to
the teachings of highly qualified publicists. A highly qualified publicist is a (e) Forcibly transferring children of prevent births within the group; or
scholar of public international law and the term usually refers to legal the group to another group.
scholars or academic writers.[82] It has not been shown that the authors [83] of (6) transfers by force children of the
this report are highly qualified publicists. group to another group;

shall be punished as provided in

subsection (b).
Assuming arguendo that the report has weight, still, the perceived
gaps in the definitions of the crimes are nonexistent. To highlight, the table Article 8 (a) Definition As used in this Section
below shows the definitions of genocide and war crimes under the Rome the term war crime means any
Statute vis--vis the definitions under US laws: War Crimes conduct

2. For the purpose of this Statute,
war crimes means:
(a) Grave breaches of the Geneva
Rome Statute US Law
Conventions of 12 August 1949,
Article 6 1091. Genocide namely, any of the following acts
against persons or property
Genocide protected under the provisions of
the relevant Geneva Convention: x
For the purpose of this Statute, (a) Basic Offense Whoever, whether in x x[84]
genocide means any of the the time of peace or in time of war and
(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
(b) Other serious violations of the
laws and customs applicable in
international armed conflict, within
the established framework of
international law, namely, any of the
following acts:
xxxx
(c) In the case of an armed conflict
not of an international character,
serious violations of article 3
common to the four Geneva
Conventions of 12 August 1949,
namely, any of the following acts
committed against persons taking
no active part in the hostilities,
including members of armed forces
who have laid down their arms and
those placed hors de combat by
sickness, wounds, detention or any
other cause:
xxxx
(d) Paragraph 2 (c) applies to
armed conflicts not of an
international character and thus
does not apply to situations of
internal disturbances and tensions,
such as riots, isolated and sporadic
acts of violence or other acts of a
similar nature.
(e) Other serious violations of the
laws and customs applicable in
armed conflicts not of an
international character, within the
established framework of
international law, namely, any of the
following acts: x x x.
Land, signed 18 October 1907;
(3) Which constitutes a grave breach
of common Article 3 (as defined in
subsection [d][85]) when committed
in the context of and in
association with an armed conflict
not of an international character;
or
(4) Of a person who, in relation to an
armed conflict and contrary to the
provisions of the Protocol on
Prohibitions or Restrictions on the
Use of Mines, Booby-Traps and
Other Devices as amended at
Geneva on 3 May 1996 (Protocol
II as amended on 3 May 1996),
when the United States is a party
to such Protocol, willfully kills or
causes serious injury to civilians.
[86]
Evidently, the gaps pointed out as to the definition of the crimes are not
present. In fact, the report itself stated as much, to wit:
Few believed there were wide differences between
the crimes under the jurisdiction of the Court and crimes
within the Uniform Code of Military Justice that would expose
US personnel to the Court. Since US military lawyers were
instrumental in drafting the elements of crimes outlined in the
Rome Statute, they ensured that most of the crimes were
consistent with those outlined in the UCMJ and gave
strength to complementarity for the US. Small areas of
potential gaps between the UCMJ and the Rome Statute,
military experts argued, could be addressed through existing
military laws.[87] x x x
The report went on further to say that [a]ccording to those involved,
the elements of crimes laid out in the Rome Statute have been part
of US military doctrine for decades.[88] Thus, the argument proffered cannot
stand.
Nonetheless, despite the lack of actual domestic legislation,
the US notably follows the doctrine of incorporation. As early as 1900, the
esteemed Justice Gray in The Paquete 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 And this brings us to what Fr. Bernas, S.J. aptly said respecting the
them, even by agreement.[109]
application of the concurring elements, thus:

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]
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.

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 xxxx
to try these crimes.

The initial factor for determining the existence of custom

Consequently, no matter how hard one insists, the ICC, as an is the actual behavior of states. This includes several
international tribunal, found in the Rome Statute is not declaratory of elements: duration, consistency, and generality of the
customary international law. practice of states.

The first element of customary international law, i.e., established, The required duration can be either short or long. x x
widespread, and consistent practice on the part of States, [113] does not, under x
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, xxxx
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 Duration therefore is not the most important
criminal courts envisioned in the Rome Statute. Lest it be overlooked, element. More important is the consistency and the
the Philippines, judging by the action or inaction of its top officials, does not generality of the practice. x x x
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 xxxx
process.
 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.)
Public Officers and Investigations, [t]he power to enter into an executive
agreement is in essence an executive power. This authority of the President
to enter into executive agreements without the concurrence of the Legislature
has traditionally been recognized in Philippine jurisprudence. [120] The
rationale behind this principle is the inviolable doctrine of separation of
powers among the legislative, executive and judicial branches of the
government. Thus, absent any clear contravention of the law, courts should
exercise utmost caution in declaring any executive agreement invalid.

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. In light of the above consideration, the position or view that the
challenged RP-US Non-Surrender Agreement ought to be in the form of a
Absent the widespread/consistent-practice-of-states factor, the treaty, to be effective, has to be rejected.
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 WHEREFORE, the petition for certiorari, mandamus and
practice, in a certain manner. This implicitly requires belief that the practice in prohibition is hereby DISMISSED for lack of merit. No costs.
question is rendered obligatory by the existence of a rule of law requiring it.
[117]
Like the first element, the second element has likewise not been shown to
be present.

Further, the Rome Statute itself rejects the concept of universal

jurisdiction over the crimes enumerated therein as evidenced by it requiring
State consent.[118] Even further, the Rome Statute specifically and
unequivocally requires that: This Statute is subject to ratification,
acceptance or approval by signatory States. [119] These clearly negate the
argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign

government must be afforded great respect. The power to enter into
executive agreements has long been recognized to be lodged with the
President. As We held in Neri v. Senate Committee on Accountability of
 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,
CHINA NATIONAL MACHINERY & EQUIPMENT CORP. G.R. No. 185572 entered into a Memorandum of Understanding with the North Luzon Railways
(GROUP), Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for
Petitioner, the conduct of a feasibility study on a possible railway line from Manila to
Present: San Fernando, La Union (the Northrail Project).[2]
versus CORONA, C.J.,
CARPIO, On 30 August 2003, the Export Import Bank of China (EXIM Bank)
VELASCO, JR., and the Department of Finance of the Philippines (DOF) entered into a
HON. CESAR D. SANTAMARIA, in his official LEONARDO-DE CASTRO,
Memorandum of Understanding (Aug 30 MOU), wherein China agreed to
capacity as Presiding Judge of Branch 145, Regional BRION,
extend Preferential Buyers Credit to the Philippine government to finance the
Trial Court of Makati City, HERMINIO HARRY L. PERALTA,
ROQUE, JR., JOEL R. BUTUYAN, ROGER R. RAYEL, BERSAMIN, Northrail Project.[3] The Chinese government designated EXIM Bank as the
ROMEL R. BAGARES, CHRISTOPHER FRANCISCO DEL CASTILLO, lender, while the Philippine government named the DOF as the borrower.
C. BOLASTIG, LEAGUE OF URBAN POOR FOR ABAD, [4]
Under the Aug 30 MOU, EXIM Bank agreed to extend an amount not
ACTION (LUPA), KILUSAN NG MARALITA SA VILLARAMA, JR.,
exceeding USD 400,000,000 in favor of the DOF, payable in 20 years, with a
MEYCAUAYAN (KMM-LUPA CHAPTER), DANILO M. PEREZ,
CALDERON, VICENTE C. ALBAN, MERLYN M. VAAL, MENDOZA, 5-year grace period, and at the rate of 3% per annum. [5]
LOLITA S. QUINONES, RICARDO D. LANOZO, JR., SERENO,
CONCHITA G. GOZO, MA. TERESA D. ZEPEDA, REYES, and On 1 October 2003, the Chinese Ambassador to the Philippines, Wang
JOSEFINA A. LANOZO, and SERGIO C. LEGASPI, PERLAS-BERNABE, Chungui (Amb. Wang), wrote a letter to DOF Secretary Jose Isidro Camacho
JR., KALIPUNAN NG DAMAYANG MAHIHIRAP
(KADAMAY), EDY CLERIGO, RAMMIL DINGAL, (Sec. Camacho) informing him of CNMEGs designation as the Prime
NELSON B. TERRADO, CARMEN DEUNIDA, and Contractor for the Northrail Project.[6]
EDUARDO LEGSON,
Respondents. 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
Promulgated: Agreement).[7] The contract price for the Northrail Project was pegged at USD
421,050,000.[8]
February 7, 2012
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x On 26 February 2004, the Philippine government and EXIM Bank
entered into a counterpart financial agreement Buyer Credit Loan Agreement
DECISION 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]
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.)
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;
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 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 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
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.)
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 must be remembered that this Court is not precluded from making an inquiry
of this case. Certainly, it would have been highly prudential
into the intrinsic correctness of such certification.
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
D. An
executive branch in charge of our diplomatic relations,
agreement to submit any
has indeed endorsed GTZs claim of immunity. It may be
dispute to arbitration may
possible that GTZ tried, but failed to secure such certification,
be construed as an
due to the same concerns that we have discussed herein.
implicit waiver of
immunity from suit.
Would the fact that the Solicitor General has
endorsed GTZs claim of States immunity from suit
before this Court sufficiently substitute for the DFA In the United States, the Foreign Sovereign Immunities Act of 1976
certification? Note that the rule in public international provides for a waiver by implication of state immunity. In the said law, the
law quoted in Holy See referred to endorsement by the agreement to submit disputes to arbitration in a foreign country is construed as
Foreign Office of the State where the suit is filed, such
foreign office in the Philippines being the Department an implicit waiver of immunity from suit. Although there is no similar law in the
of Foreign Affairs. Nowhere in the Comment of the OSG Philippines, there is reason to apply the legal reasoning behind the waiver in
is it manifested that the DFA has endorsed GTZs claim, this case.
or that the OSG had solicited the DFAs views on the
issue. The arguments raised by the OSG are virtually the The Conditions of Contract,[48] which is an integral part of the Contract
same as the arguments raised by GTZ without any
indication of any special and distinct perspective maintained Agreement,[49] states:
by the Philippine government on the issue. The Comment
filed by the OSG does not inspire the same degree of 33. SETTLEMENT OF DISPUTES AND
confidence as a certification from the DFA would have ARBITRATION
elicited.[46] (Emphasis supplied.)
33.1. Amicable Settlement

Both parties shall attempt to amicably settle all

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
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:
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.

G.R. No. 188550 August 19, 2013
DEUTSCHE BANK AG MANILA BRANCH, PETITIONER,
vs.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
DECISION
SERENO, CJ.:
This is a Petition for Review1 filed by Deutsche Bank AG Manila Branch
(petitioner) under Rule 45 of the 1997 Rules of Civil Procedure assailing the
Court of Tax Appeals En Banc (CTA En Banc) Decision2 dated 29 May 2009
and Resolution3 dated 1 July 2009 in C.T.A. EB No. 456.
THE FACTS
In accordance with Section 28(A)(5)4 of the National Internal Revenue Code
(NIRC) of 1997, petitioner withheld and remitted to respondent on 21 October
2003 the amount of PHP 67,688,553.51, which represented the fifteen
percent (15%) branch profit remittance tax (BPRT) on its regular banking unit
(RBU) net income remitted to Deutsche Bank Germany (DB Germany) for
2002 and prior taxable years.5
Believing that it made an overpayment of the BPRT, petitioner filed with the
BIR Large Taxpayers Assessment and Investigation Division on 4 October
2005 an administrative claim for refund or issuance of its tax credit certificate
in the total amount of PHP 22,562,851.17. On the same date, petitioner
requested from the International Tax Affairs Division (ITAD) a confirmation of
its entitlement to the preferential tax rate of 10% under the RP-Germany Tax
Treaty.6
Alleging the inaction of the BIR on its administrative claim, petitioner filed a
Petition for Review7 with the CTA on 18 October 2005. Petitioner reiterated
its claim for the refund or issuance of its tax credit certificate for the amount
of PHP 22,562,851.17 representing the alleged excess BPRT paid on branch
profits remittance to DB Germany.
THE CTA SECOND DIVISION RULING8
After trial on the merits, the CTA Second Division found that petitioner indeed
paid the total amount of PHP 67,688,553.51 representing the 15% BPRT on
its RBU profits amounting to PHP 451,257,023.29 for 2002 and prior taxable
years. Records also disclose that for the year 2003, petitioner remitted to DB
Germany the amount of EURO 5,174,847.38 (or PHP 330,175,961.88 at the
exchange rate of PHP 63.804:1 EURO), which is net of the 15% BPRT.
However, the claim of petitioner for a refund was denied on the ground that
the application for a tax treaty relief was not filed with ITAD prior to the
payment by the former of its BPRT and actual remittance of its branch profits
to DB Germany, or prior to its availment of the preferential rate of ten percent
(10%) under the RP-Germany Tax Treaty provision. The court a quo held that
petitioner violated the fifteen (15) day period mandated under Section III
paragraph (2) of Revenue Memorandum Order (RMO) No. 1-2000.
Further, the CTA Second Division relied on Mirant (Philippines) Operations
Corporation (formerly Southern Energy Asia-Pacific Operations [Phils.], Inc.)
v. Commissioner of Internal Revenue9 (Mirant) where the CTA En Banc ruled
that before the benefits of the tax treaty may be extended to a foreign
corporation wishing to avail itself thereof, the latter should first invoke the
provisions of the tax treaty and prove that they indeed apply to the
corporation.
THE CTA EN BANC RULING10
The CTA En Banc affirmed the CTA Second Division’s Decision dated 29
August 2008 and Resolution dated 14 January 2009. Citing Mirant, the CTA
En Banc held that a ruling from the ITAD of the BIR must be secured prior to
the availment of a preferential tax rate under a tax treaty. Applying the
principle of stare decisis et non quieta movere, the CTA En Banc took into
consideration that this Court had denied the Petition in G.R. No. 168531 filed
by Mirant for failure to sufficiently show any reversible error in the assailed
judgment.11 The CTA En Banc ruled that once a case has been decided in
one way, any other case involving exactly the same point at issue should be
decided in the same manner.
The court likewise ruled that the 15-day rule for tax treaty relief application
under RMO No. 1-2000 cannot be relaxed for petitioner, unlike in CBK Power
Company Limited v. Commissioner of Internal Revenue.12 In that case, the
rule was relaxed and the claim for refund of excess final withholding taxes
was partially granted. While it issued a ruling to CBK Power Company
Limited after the payment of withholding taxes, the ITAD did not issue any
ruling to petitioner even if it filed a request for confirmation on 4 October
2005 that the remittance of branch profits to DB Germany is subject to a
preferential tax rate of 10% pursuant to Article 10 of the RP-Germany Tax
Treaty.
ISSUE
This Court is now confronted with the issue of whether the failure to strictly
comply with RMO No. 1-2000 will deprive persons or corporations of the
benefit of a tax treaty.
THE COURT’S RULING
The Petition is meritorious.
Under Section 28(A)(5) of the NIRC, any profit remitted to its head office
shall be subject to a tax of 15% based on the total profits applied for or
earmarked for remittance without any deduction of the tax component.
However, petitioner invokes paragraph 6, Article 10 of the RP-Germany Tax
Treaty, which provides that where a resident of the Federal Republic of
Germany has a branch in the Republic of the Philippines, this branch may be
subjected to the branch profits remittance tax withheld at source in
accordance with Philippine law but shall not exceed 10% of the gross amount
of the profits remitted by that branch to the head office.
By virtue of the RP-Germany Tax Treaty, we are bound to extend to a branch
in the Philippines, remitting to its head office in Germany, the benefit of a
preferential rate equivalent to 10% BPRT.
On the other hand, the BIR issued RMO No. 1-2000, which requires that any
availment of the tax treaty relief must be preceded by an application with
ITAD at least 15 days before the transaction. The Order was issued to
streamline the processing of the application of tax treaty relief in order to
improve efficiency and service to the taxpayers. Further, it also aims to
prevent the consequences of an erroneous interpretation and/or application
of the treaty provisions (i.e., filing a claim for a tax refund/credit for the
overpayment of taxes or for deficiency tax liabilities for underpayment). 13
The crux of the controversy lies in the implementation of RMO No. 1-2000.
Petitioner argues that, considering that it has met all the conditions under
Article 10 of the RP-Germany Tax Treaty, the CTA erred in denying its claim
solely on the basis of RMO No. 1-2000. The filing of a tax treaty relief
application is not a condition precedent to the availment of a preferential tax
rate. Further, petitioner posits that, contrary to the ruling of the CTA, Mirant is
not a binding judicial precedent to deny a claim for refund solely on the basis
of noncompliance with RMO No. 1-2000.
Respondent counters that the requirement of prior application under RMO
No. 1-2000 is mandatory in character. RMO No. 1-2000 was issued pursuant
to the unquestioned authority of the Secretary of Finance to promulgate rules
and regulations for the effective implementation of the NIRC. Thus, courts
cannot ignore administrative issuances which partakes the nature of a statute
and have in their favor a presumption of legality.
The CTA ruled that prior application for a tax treaty relief is mandatory, and
noncompliance with this prerequisite is fatal to the taxpayer’s availment of
the preferential tax rate.
We disagree.
A minute resolution is not a binding precedent
At the outset, this Court’s minute resolution on Mirant is not a binding
precedent. The Court has clarified this matter in Philippine Health Care
Providers, Inc. v. Commissioner of Internal Revenue 14 as follows:
It is true that, although contained in a minute resolution, our dismissal of the
petition was a disposition of the merits of the case. When we dismissed the
petition, we effectively affirmed the CA ruling being questioned. As a result,
our ruling in that case has already become final. When a minute resolution
denies or dismisses a petition for failure to comply with formal and
substantive requirements, the challenged decision, together with its findings
of fact and legal conclusions, are deemed sustained. But what is its effect on
other cases?
With respect to the same subject matter and the same issues concerning the
same parties, it constitutes res judicata. However, if other parties or another
subject matter (even with the same parties and issues) is involved, the
minute resolution is not binding precedent. Thus, in CIR v. Baier-Nickel, the
Court noted that a previous case, CIR v. Baier-Nickel involving the same
parties and the same issues, was previously disposed of by the Court thru a
minute resolution dated February 17, 2003 sustaining the ruling of the CA.
Nonetheless, the Court ruled that the previous case "ha(d) no bearing" on the
latter case because the two cases involved different subject matters as they
were concerned with the taxable income of different taxable years.
Besides, there are substantial, not simply formal, distinctions between a
minute resolution and a decision. The constitutional requirement under the
first paragraph of Section 14, Article VIII of the Constitution that the facts and
the law on which the judgment is based must be expressed clearly and
distinctly applies only to decisions, not to minute resolutions. A minute
resolution is signed only by the clerk of court by authority of the justices,
unlike a decision. It does not require the certification of the Chief Justice.
Moreover, unlike decisions, minute resolutions are not published in the
Philippine Reports. Finally, the proviso of Section 4(3) of Article VIII speaks of
a decision. Indeed, as a rule, this Court lays down doctrines or principles of
law which constitute binding precedent in a decision duly signed by the
members of the Court and certified by the Chief Justice. (Emphasis supplied)
Even if we had affirmed the CTA in Mirant, the doctrine laid down in that
Decision cannot bind this Court in cases of a similar nature. There are
differences in parties, taxes, taxable periods, and treaties involved; more
importantly, the disposition of that case was made only through a minute
resolution.
Tax Treaty vs. RMO No. 1-2000
Our Constitution provides for adherence to the general principles of
international law as part of the law of the land. 15The time-honored
international principle of pacta sunt servanda demands the performance in
good faith of treaty obligations on the part of the states that enter into the
agreement. Every treaty in force is binding upon the parties, and obligations
under the treaty must be performed by them in good faith. 16 More importantly,
treaties have the force and effect of law in this jurisdiction. 17
Tax treaties are entered into "to reconcile the national fiscal legislations of the
contracting parties and, in turn, help the taxpayer avoid simultaneous
taxations in two different jurisdictions."18 CIR v. S.C. Johnson and Son, Inc.
further clarifies that "tax conventions are drafted with a view towards the
elimination of international juridical double taxation, which is defined as the
imposition of comparable taxes in two or more states on the same taxpayer
in respect of the same subject matter and for identical periods. The apparent
rationale for doing away with double taxation is to encourage the free flow of
goods and services and the movement of capital, technology and persons
between countries, conditions deemed vital in creating robust and dynamic
economies. Foreign investments will only thrive in a fairly predictable and
reasonable international investment climate and the protection against
double taxation is crucial in creating such a climate." 19
Simply put, tax treaties are entered into to minimize, if not eliminate the
harshness of international juridical double taxation, which is why they are
also known as double tax treaty or double tax agreements.
"A state that has contracted valid international obligations is bound to make
in its legislations those modifications that may be necessary to ensure the
fulfillment of the obligations undertaken." 20 Thus, laws and issuances must
ensure that the reliefs granted under tax treaties are accorded to the parties
entitled thereto. The BIR must not impose additional requirements that would
negate the availment of the reliefs provided for under international
agreements. More so, when the RP-Germany Tax Treaty does not provide for
any pre-requisite for the availment of the benefits under said agreement.
Likewise, it must be stressed that there is nothing in RMO No. 1-2000 which
would indicate a deprivation of entitlement to a tax treaty relief for failure to
comply with the 15-day period. We recognize the clear intention of the BIR in
implementing RMO No. 1-2000, but the CTA’s outright denial of a tax treaty
relief for failure to strictly comply with the prescribed period is not in harmony
with the objectives of the contracting state to ensure that the benefits granted
under tax treaties are enjoyed by duly entitled persons or corporations.
Bearing in mind the rationale of tax treaties, the period of application for the
availment of tax treaty relief as required by RMO No. 1-2000 should not
operate to divest entitlement to the relief as it would constitute a violation of
the duty required by good faith in complying with a tax treaty. The denial of
the availment of tax relief for the failure of a taxpayer to apply within the
prescribed period under the administrative issuance would impair the value
of the tax treaty. At most, the application for a tax treaty relief from the BIR
should merely operate to confirm the entitlement of the taxpayer to the relief.
The obligation to comply with a tax treaty must take precedence over the
objective of RMO No. 1-2000.1âwphi1 Logically, noncompliance with tax
treaties has negative implications on international relations, and unduly
discourages foreign investors. While the consequences sought to be
prevented by RMO No. 1-2000 involve an administrative procedure, these
may be remedied through other system management processes, e.g., the
imposition of a fine or penalty. But we cannot totally deprive those who are
entitled to the benefit of a treaty for failure to strictly comply with an
administrative issuance requiring prior application for tax treaty relief.
Prior Application vs. Claim for Refund
Again, RMO No. 1-2000 was implemented to obviate any erroneous
interpretation and/or application of the treaty provisions. The objective of the
BIR is to forestall assessments against corporations who erroneously availed
themselves of the benefits of the tax treaty but are not legally entitled thereto,
as well as to save such investors from the tedious process of claims for a
refund due to an inaccurate application of the tax treaty provisions. However,
as earlier discussed, noncompliance with the 15-day period for prior
application should not operate to automatically divest entitlement to the tax
treaty relief especially in claims for refund.
The underlying principle of prior application with the BIR becomes moot in
refund cases, such as the present case, where the very basis of the claim is
erroneous or there is excessive payment arising from non-availment of a tax
treaty relief at the first instance. In this case, petitioner should not be faulted
for not complying with RMO No. 1-2000 prior to the transaction. It could not
have applied for a tax treaty relief within the period prescribed, or 15 days
prior to the payment of its BPRT, precisely because it erroneously paid the
BPRT not on the basis of the preferential tax rate under
the RP-Germany Tax Treaty, but on the regular rate as prescribed by the
NIRC. Hence, the prior application requirement becomes illogical. Therefore,
the fact that petitioner invoked the provisions of the RP-Germany Tax Treaty
when it requested for a confirmation from the ITAD before filing an
administrative claim for a refund should be deemed substantial compliance
with RMO No. 1-2000.
Corollary thereto, Section 22921 of the NIRC provides the taxpayer a remedy
for tax recovery when there has been an erroneous payment of
tax.1âwphi1 The outright denial of petitioner’s claim for a refund, on the sole
ground of failure to apply for a tax treaty relief prior to the payment of the
BPRT, would defeat the purpose of Section 229.
Petitioner is entitled to a refund
It is significant to emphasize that petitioner applied – though belatedly – for a
tax treaty relief, in substantial compliance with RMO No. 1-2000. A ruling by
the BIR would have confirmed whether petitioner was entitled to the lower
rate of 10% BPRT pursuant to the RP-Germany Tax Treaty.
Nevertheless, even without the BIR ruling, the CTA Second Division found as
follows:
Based on the evidence presented, both documentary and testimonial,
petitioner was able to establish the following facts:
a. That petitioner is a branch office in the Philippines of Deutsche
Bank AG, a corporation organized and existing under the laws of the
Federal Republic of Germany;
b. That on October 21, 2003, it filed its Monthly Remittance Return of
Final Income Taxes Withheld under BIR Form No. 1601-F and
remitted the amount of ₱67,688,553.51 as branch profits remittance
tax with the BIR; and
c. That on October 29, 2003, the Bangko Sentral ng Pilipinas having
issued a clearance, petitioner remitted to Frankfurt Head Office the
amount of EUR5,174,847.38 (or ₱330,175,961.88 at 63.804
Peso/Euro) representing its 2002 profits remittance. 22
The amount of PHP 67,688,553.51 paid by petitioner represented the 15%
BPRT on its RBU net income, due for remittance to DB Germany amounting
to PHP 451,257,023.29 for 2002 and prior taxable years. 23
Likewise, both the administrative and the judicial actions were filed within the
two-year prescriptive period pursuant to Section 229 of the NIRC. 24
Clearly, there is no reason to deprive petitioner of the benefit of a preferential
tax rate of 10% BPRT in accordance with the RP-Germany Tax Treaty.
Petitioner is liable to pay only the amount of PHP 45,125,702.34 on its RBU
net income amounting to PHP 451,257,023.29 for 2002 and prior taxable
years, applying the 10% BPRT. Thus, it is proper to grant petitioner a refund
ofthe difference between the PHP 67,688,553.51 (15% BPRT) and PHP
45,125,702.34 (10% BPRT) or a total of PHP 22,562,851.17.
WHEREFORE, premises considered, the instant Petition is GRANTED.
Accordingly, the Court of Tax Appeals En Banc Decision dated 29 May 2009
and Resolution dated 1 July 2009 are REVERSED and SET ASIDE. A new
one is hereby entered ordering respondent Commissioner of Internal
Revenue to refund or issue a tax credit certificate in favor of petitioner
Deutsche Bank AG Manila Branch the amount of TWENTY TWO MILLION
FIVE HUNDRED SIXTY TWO THOUSAND EIGHT HUNDRED FIFTY ONE
PESOS AND SEVENTEEN CENTAVOS (PHP 22,562,851.17), Philippine
currency, representing the erroneously paid BPRT for 2002 and prior taxable
years.

G.R. Nos. 193383-84, January 14, 2015
CBK POWER COMPANY LIMITED, Petitioner, v. COMMISSIONER OF
INTERNAL REVENUE, Respondent.
[G.R. NOS. 193407-08]
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. CBK POWER
COMPANY LIMITED, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in these consolidated petitions for review on certiorari1 are the
Decision2 dated March 29, 2010 and the Resolution3 dated August 16, 2010
of the Court of Tax Appeals (CTA) En Banc in C.T.A. E.B. Nos. 469 and 494,
which affirmed the Decision4 dated August 28, 2008, the Amended
Decision5 dated February 12, 2009, and the Resolution6 dated May 7, 2009
of the CTA First Division in CTA Case Nos. 6699, 6884, and 7166 granting
CBK Power Company Limited (CBK Power) a refund of its excess final
withholding tax for the taxable years 2001 to 2003.cralawred
The Facts
CBK Power is a limited partnership duly organized and existing under the
laws of the Philippines, and primarily engaged in the development and
operation of the Caliraya, Botocan, and Kalayaan hydroelectric power
generating plants in Laguna (CBK Project). It is registered with the Board of
Investments (BOI) as engaged in a preferred pioneer area of investment
under the Omnibus Investment Code of 1987.7chanRoblesvirtualLawlibrary
To finance the CBK Project, CBK Power obtained in August 2000 a
syndicated loan from several foreign banks,8 i.e., BNP Paribas, Dai-ichi
Kangyo Bank, Limited, Industrial Bank of Japan, Limited, and Societe
General (original lenders), acting through an Inter-Creditor Agent, Dai-ichi
Kangyo Bank, a Japanese bank that subsequently merged with the Industrial
Bank of Japan, Limited (Industrial Bank of Japan) and the Fuji Bank, Limited
(Fuji Bank), with the merged entity being named as Mizuho Corporate Bank
(Mizuho Bank). One of the merged banks, Fuji Bank, had a branch in the
Philippines, which became a branch of Mizuho Bank as a result of the
merger. The Industrial Bank of Japan and Mizuho Bank are residents of
Japan for purposes of income taxation, and recognized as such under the
relevant provisions of the income tax treaties between the Philippines and
Japan.9chanRoblesvirtualLawlibrary
Certain portions of the loan were subsequently assigned by the original
lenders to various other banks, including Fortis Bank (Nederland) N.V.
(Fortis-Netherlands) and Raiffesen Zentral Bank Osterreich AG (Raiffesen
Bank). Fortis-Netherlands, in turn, assigned its portion of the loan to Fortis
Bank S.A./N.V. (Fortis-Belgium), a resident of Belgium. Fortis-Netherlands
and Raiffesen Bank, on the other hand, are residents of Netherlands and
Austria, respectively.10chanRoblesvirtualLawlibrary
In February 2001, CBK Power borrowed money from Industrial Bank of
Japan, Fortis-Netherlands, Raiffesen Bank, Fortis-Belgium, and Mizuho Bank
for which it remitted interest payments from May 2001 to May 2003. 11 It
allegedly withheld final taxes from said payments based on the following
rates, and paid the same to the Revenue District Office No. 55 of the Bureau
of Internal Revenue (BIR): (a) fifteen percent (15%) for Fortis-Belgium,
Fortis-Netherlands, and Raiffesen Bank; and (b) twenty percent (20%) for
Industrial Bank of Japan and Mizuho Bank.12chanRoblesvirtualLawlibrary
However, according to CBK Power, under the relevant tax treaties between
the Philippines and the respective countries in which each of the banks is a
resident, the interest income derived by the aforementioned banks are
subject only to a preferential tax rate of
10%, viz.:13chanRoblesvirtualLawlibrary
BANK COUNTRY OF PREFERENTIAL RATE
RESIDENCE UNDER THE RELEVANT TAX
TREATY
Fortis Bank S.A./N.V. Belgium 10% (Article 111, RP-Belgium Tax
Treaty)
 Industrial Bank of Japan 10% (Article 113, RP-Japan Tax ITAD Ruling No. 099-0319 dated July 16, 2003, issued by the BIR, confirming
Japan Treaty) CBK Power’s claim that the interest payments it made to Industrial Bank of
Raiffesen Zentral Bank Austria 10% (Article 113, RP-Austria Tax Japan and Raiffesen Bank were subject to a final withholding tax rate of only
Osterreich AG Treaty) 10% of the gross amount of interest, pursuant to Article 11 of the Republic of
Mizuho Corporate Japan 10% (Article 113, RP-Japan Tax the Philippines (RP)-Austria and RP-Japan tax treaties. However, in DA-ITAD
Bank Treaty) Ruling No. 126-0320 dated August 18, 2003, also issued by the BIR, interest
payments to Fortis-Belgium were likewise subjected to the same rate
Accordingly, on April 14, 2003, CBK Power filed a claim for refund of its pursuant to the Protocol Amending the RP-Belgium Tax Treaty, the provisions
excess final withholding taxes allegedly erroneously withheld and collected of which apply on income derived or which accrued beginning January 1,
for the years 2001 and 2002 with the BIR Revenue Region No. 9. The claim 2000. With respect to interest payments made to Fortis-Netherlands before it
for refund of excess final withholding taxes in 2003 was subsequently filed assigned its portion of the loan to Fortis-Belgium, the CTA First Division
on March 4, 2005.14chanRoblesvirtualLawlibrary likewise granted the preferential rate.21chanRoblesvirtualLawlibrary

The Commissioner of Internal Revenue’s (Commissioner) inaction on said The CTA First Division categorically declared in the August 28, 2008 Decision
claims prompted CBK Power to file petitions for review before the that the required International Tax Affairs Division (ITAD) ruling was not a
CTA, viz.:15chanRoblesvirtualLawlibrary condition sine qua non for the entitlement of the tax relief sought by CBK
Power,22 however, upon motion for reconsideration23 filed by the
Commissioner, the CTA First Division amended its earlier decision by
(1) CTA Case No. 6699 was filed by CBK Power on June 6, 2003 seeking
reducing the amount of the refund from P15,672,958.42
the refund of excess final withholding tax in the total amount
to P14,835,720.39 on the ground that CBK Power failed to obtain an ITAD
of P6,393,267.20 covering the year 2001 with respect to interest income
ruling with respect to its transactions with Fortis-Netherlands. 24 In its
derived by [Fortis-Belgium], Industrial Bank of Japan, and [Raiffesen Bank].
Amended Decision25 dated February 12, 2009, the CTA First Division
An Answer was filed by the Commissioner on July 25, 2003.
adopted26 the ruling in the case of Mirant (Philippines) Operations
Corporation (formerly: Southern Energy Asia-Pacific Operations [Phils.],
(2) CTA Case No. 6884 was filed by CBK Power on March 5, 2004 seeking
Inc.) v. Commissioner of Internal Revenue (Mirant),27 cited by the
for the refund of the amount of P8,136,174.31 covering [the] year 2002 with
Commissioner in his motion for reconsideration, where the Court
respect to interest income derived by [Fortis-Belgium], Industrial Bank of
categorically pronounced in its Resolution dated February 18, 2008 that an
Japan, [Mizuho Bank], and [Raiffesen Bank]. The Commissioner filed his
ITAD ruling must be obtained prior to availing a preferential tax rate.
Answer on May 7, 2004.
CBK Power moved for the reconsideration28 of the Amended Decision dated
xxxx
February 12, 2009, arguing in the main that the Mirant case, which was
resolved in a minute resolution, did not establish a legal precedent. The
(3) CTA Case No. 7166 was filed by CBK [Power] on March 9, 2005 seeking
motion was denied, however, in a Resolution29 dated May 7, 2009 for lack of
for the refund of [the amount of] P1,143,517.21 covering [the] year 2003 with
merit.
respect to interest income derived by [Fortis-Belgium], and [Raiffesen Bank].
The Commissioner filed his Answer on May 9, 2005. (Emphases supplied)
Undaunted, CBK Power elevated the matter to the CTA En Banc on petition
for review,30 docketed as C.T.A E.B. No. 494. The Commissioner likewise
CTA Case Nos. 6699 and 6884 were consolidated first on June 18, 2004.
filed his own petition for review, 31 which was docketed as C.T.A. E.B. No.
Subsequently, however, all three cases – CTA Case Nos. 6699, 6884, and
469. Said petitions were subsequently
7166 – were consolidated in a Resolution dated August 3,
consolidated.32chanRoblesvirtualLawlibrary
2005.16chanRoblesvirtualLawlibrary
CBK Power raised the lone issue of whether or not an ITAD ruling is required
The CTA First Division Rulings
before it can avail of the preferential tax rate. On the other hand, the
Commissioner claimed that CBK Power failed to exhaust administrative
In a Decision17 dated August 28, 2008, the CTA First Division granted the
remedies when it filed its petitions before the CTA First Division, and that said
petitions and ordered the refund of the amount of P15,672,958.42 upon a
finding that the relevant tax treaties were applicable to the case. 18 It cited DA-
petitions were not filed within the two-year prescriptive period for initiating
judicial claims for refund.33chanRoblesvirtualLawlibrary
The CTA En Banc Ruling
In a Decision34 dated March 29, 2010, the CTA En Banc affirmed the ruling
of the CTA First Division that a prior application with the ITAD is indeed
required by Revenue Memorandum Order (RMO) 1-2000,35which
administrative issuance has the force and effect of law and is just as binding
as a tax treaty. The CTA En Banc declared the Mirant case as without any
binding effect on CBK Power, having been resolved by this Court merely
through minute resolutions, and relied instead on the mandatory wording of
RMO 1-2000, as follows:36chanRoblesvirtualLawlibrary
III. Policies:
xxxx
2. Any availment of the tax treaty relief shall be preceded by an
application by filing BIR Form No. 0901 (Application for Relief from
Double Taxation) with ITAD at least 15 days before the transaction
i.e. payment of dividends, royalties, etc.,accompanied by supporting
documents justifying the relief. x x x.
The CTA En Banc further held that CBK Power’s petitions for review were
filed within the two-year prescriptive period provided under Section 229 37 of
the National Internal Revenue Code of 199738 (NIRC), and that it was proper
for CBK Power to have filed said petitions without awaiting the final resolution
of its administrative claims for refund before the BIR; otherwise, it would have
completely lost its right to seek judicial recourse if the two-year prescriptive
period lapsed with no judicial claim filed.
CBK Power’s motion for partial reconsideration and the Commissioner’s
motion for reconsideration of the foregoing Decision were both denied in a
Resolution39 dated August 16, 2010 for lack of merit; hence, the present
consolidated petitions.
The Issues Before the Court
In G.R. Nos. 193383-84, CBK Power submits the sole legal issue of whether
the BIR may add a requirement – prior application for an ITAD ruling – that is
not found in the income tax treaties signed by the Philippines before a
taxpayer can avail of preferential tax rates under said
treaties.40chanRoblesvirtualLawlibrary
On the other hand, in G.R. Nos. 193407-08, the Commissioner maintains
that CBK Power is not entitled to a refund in the amount of P1,143,517.21 for
the period covering taxable year 2003 as it allegedly failed to exhaust
administrative remedies before seeking judicial
redress.41chanRoblesvirtualLawlibrary
The Court’s Ruling
The Court resolves the foregoing in seriatim.
A. G.R. Nos. 193383-84
The Philippine Constitution provides for adherence to the general principles
of international law as part of the law of the land. The time-honored
international principle of pacta sunt servanda demands the performance in
good faith of treaty obligations on the part of the states that enter into the
agreement. In this jurisdiction, treaties have the force and effect of
law.42chanRoblesvirtualLawlibrary
The issue of whether the failure to strictly comply with RMO No. 1-2000 will
deprive persons or corporations of the benefit of a tax treaty was squarely
addressed in the recent case of Deutsche Bank AG Manila Branch v.
Commissioner of Internal Revenue43 (Deutsche Bank), where the Court
emphasized that the obligation to comply with a tax treaty must take
precedence over the objective of RMO No. 1-
2000, viz.:chanroblesvirtuallawlibrary
We recognize the clear intention of the BIR in implementing RMO No. 1-
2000, but the CTA’s outright denial of a tax treaty relief for failure to strictly
comply with the prescribed period is not in harmony with the objectives of the
contracting state to ensure that the benefits granted under tax treaties are
enjoyed by duly entitled persons or corporations.
Bearing in mind the rationale of tax treaties, the period of application for the
availment of tax treaty relief as required by RMO No. 1-2000 should not
operate to divest entitlement to the relief as it would constitute a violation
of the duty required by good faith in complying with a tax treaty. The denial
of the availment of tax relief for the failure of a taxpayer to apply within the
prescribed period under the administrative issuance would impair the
value of the tax treaty. At most, the application for a tax treaty relief from the
BIR should merely operate to confirm the entitlement of the taxpayer to the
relief.
The obligation to comply with a tax treaty must take precedence over
the objective of RMO No. 1-2000. Logically, noncompliance with tax treaties
has negative implications on international relations, and unduly discourages
foreign investors. While the consequences sought to be prevented by RMO
No. 1-2000 involve an administrative procedure, these may be remedied
through other system management processes, e.g., the imposition of a fine
or penalty. But we cannot totally deprive those who are entitled to the
benefit of a treaty for failure to strictly comply with an administrative
issuance requiring prior application for tax treaty relief. 44 (Emphases
and underscoring supplied)
The objective of RMO No. 1-2000 in requiring the application for treaty relief
with the ITAD before a party’s availment of the preferential rate under a tax
treaty is to avert the consequences of any erroneous interpretation and/or
application of treaty provisions, such as claims for refund/credit for
overpayment of taxes, or deficiency tax liabilities for
underpayment.45 However, as pointed out in Deutsche Bank, the underlying
principle of prior application with the BIR becomes moot in refund cases –
as in the present case – where the very basis of the claim is erroneous or
there is excessive payment arising from the non-availment of a tax treaty
relief at the first instance. Just as Deutsche Bank was not faulted by the
Court for not complying with RMO No. 1-2000 prior to the transaction, 46 so
should CBK Power. In parallel, CBK Power could not have applied for a tax
treaty relief 15 days prior to its payment of the final withholding tax on the
interest paid to its lenders precisely because it erroneously paid said
tax on the basis of the regular rate as prescribed by the NIRC, and not on
the preferential tax rate provided under the different treaties. As stressed by
the Court, the prior application requirement under RMO No. 1-2000 then
becomes illogical.47chanRoblesvirtualLawlibrary
Not only is the requirement illogical, but it is also an imposition that is not
found at all in the applicable tax treaties. In Deutsche Bank, the Court
categorically held that the BIR should not impose additional requirements
that would negate the availment of the reliefs provided for under international
agreements, especially since said tax treaties do not provide for any
prerequisite at all for the availment of the benefits under said
agreements.48chanRoblesvirtualLawlibrary
It bears reiterating that the application for a tax treaty relief from the BIR
should merely operate to confirm the entitlement of the taxpayer to the
relief.49 Since CBK Power had requested for confirmation from the ITAD on
June 8, 2001 and October 28, 200250 before it filed on April 14, 2003 its
administrative claim for refund of its excess final withholding taxes, the same
should be deemed substantial compliance with RMO No. 1-2000, as
in Deutsche Bank. To rule otherwise would defeat the purpose of Section 229
of the NIRC in providing the taxpayer a remedy for erroneously paid tax
solely on the ground of failure to make prior application for tax treaty
relief.51 As the Court exhorted in Republic v. GST Philippines, Inc.,52 while the
taxpayer has an obligation to honestly pay the right taxes, the government
has a corollary duty to implement tax laws in good faith; to discharge its duty
to collect what is due to it; and to justly return what has been erroneously
and excessively given to it.53chanRoblesvirtualLawlibrary
In view of the foregoing, the Court holds that the CTA En Banc committed
reversible error in affirming the reduction of the amount of refund to CBK
Power from P15,672,958.42 to P14,835,720.39 to exclude its transactions
with Fortis-Netherlands for which no ITAD ruling was obtained. 54 CBK
Power’s petition in G.R. Nos. 193383-84 is therefore granted.
The opposite conclusion is, however, reached with respect to the
Commissioner’s petition in G.R. Nos. 193407-08.
B. G.R. Nos. 193407-08
The Commissioner laments55 that he was deprived of the opportunity to act
on the administrative claim for refund of excess final withholding taxes
covering taxable year 2003 which CBK Power filed on March 4, 2005, a
Friday, then the following Wednesday, March 9, 2005, the latter hastily
elevated the case on petition for review before the CTA. He argues56 that the
failure on the part of CBK Power to give him a reasonable time to act on
said claim is violative of the doctrines of exhaustion of administrative
remedies and of primary jurisdiction.
For its part, CBK Power maintains57 that it would be prejudicial to wait for the
Commissioner’s ruling before it files its judicial claim since it only has 2 years
from the payment of the tax within which to file both its administrative and
judicial claims.
The Court rules for CBK Power.
Sections 204 and 229 of the NIRC pertain to the refund of erroneously or
illegally collected taxes. Section 204 applies to administrative claims for
refund, while Section 229 to judicial claims for refund. In both instances, the
taxpayer’s claim must be filed within two (2) years from the date of payment
of the tax or penalty. However, Section 229 of the NIRC further states the
condition that a judicial claim for refund may not be maintained until a claim
for refund or credit has been duly filed with the Commissioner. These
provisions respectively read:chanroblesvirtuallawlibrary
SEC. 204. Authority of the Commissioner to Compromise, Abate and
Refund or Credit Taxes. – The Commissioner may -
xxxx
(C) Credit or refund taxes erroneously or illegally received or penalties
imposed without authority, refund the value of internal revenue stamps when
they are returned in good condition by the purchaser, and, in his discretion, well that the prescriptive period was about to end, it would have lost not only
redeem or change unused stamps that have been rendered unfit for use and its right to seek judicial recourse but its right to recover the final withholding
refund their value upon proof of destruction. No credit or refund of taxes or taxes it erroneously paid to the government thereby suffering irreparable
penalties shall be allowed unless the taxpayer files in writing with the damage.59chanRoblesvirtualLawlibrary
Commissioner a claim for credit or refund within two (2) years after the
payment of the tax or penalty: Provided, however, That a return filed showing Also, while it may be argued that, for the remittance filed on June 10, 2003
an overpayment shall be considered as a written claim for credit or refund. that was to prescribe on June 10, 2005, CBK Power could have waited for, at
the most, three (3) months from the filing of the administrative claim on
xxxx March 4, 2005 until the last day of the two-year prescriptive period ending
June 10, 2005, that is, if only to give the BIR at the administrative level an
SEC. 229. Recovery of Tax Erroneously or Illegally Collected. – No suit or opportunity to act on said claim, the Court cannot, on that basis alone, deny
proceeding shall be maintained in any court for the recovery of any national a legitimate claim that was, for all intents and purposes, timely filed in
internal revenue tax hereafter alleged to have been erroneously or illegally accordance with Section 229 of the NIRC. There was no violation of Section
assessed or collected, or of any penalty claimed to have been collected 229 since the law, as worded, only requires that an administrative claim be
without authority, of any sum alleged to have been excessively or in any priorly filed.
manner wrongfully collected without authority, or of any sum alleged to have
been excessively or in any manner wrongfully collected, until a claim for In the foregoing instances, attention must be drawn to the Court’s ruling
refund or credit has been duly filed with the Commissioner; but such suit or in P.J. Kiener Co., Ltd. v. David60 (Kiener), wherein it was held that in no wise
proceeding may be maintained, whether or not such tax, penalty, or sum has does the law, i.e., Section 306 of the old Tax Code (now, Section 229 of the
been paid under protest or duress. NIRC), imply that the Collector of Internal Revenue first act upon the
taxpayer’s claim, and that the taxpayer shall not go to court before he is
In any case, no such suit or proceeding shall be filed after the expiration of notified of the Collector’s action. In Kiener, the Court went on to say that the
two (2) years from the date of payment of the tax or penalty regardless of any claim with the Collector of Internal Revenue was intended primarily as a
supervening cause that may arise after payment: x x x. (Emphases and notice of warning that unless the tax or penalty alleged to have been
underscoring supplied) collected erroneously or illegally is refunded, court action will
follow, viz.:chanroblesvirtuallawlibrary
Indubitably, CBK Power’s administrative and judicial claims for refund of its
excess final withholding taxes covering taxable year 2003 were filed within The controversy centers on the construction of the aforementioned section of
the two-year prescriptive period, as shown by the table the Tax Code which reads:ChanRoblesVirtualawlibrary
below:58chanRoblesvirtualLawlibrary SEC. 306. Recovery of tax erroneously or illegally collected. — No suit or
proceeding shall be maintained in any court for the recovery of any national
WHEN WHEN LAST DAY OF WHEN WHEN internal revenue tax hereafter alleged to have been erroneously or illegally
FINAL REMITTANCE THE 2-YEAR PETITION assessed or collected, or of any penalty claimed to have been collected
INCOME RETURN ADMINISTRATIVE FOR without authority, or of any sum alleged to have been excessive or in any
TAXES FILED PRESCRIPTIVE CLAIM WAS REVIEW manner wrongfully collected, until a claim for refund or credit has been duly
WERE PERIOD FILED WAS filed with the Collector of Internal Revenue; but such suit or proceeding may
WITHHELD FILED be maintained, whether or not such tax, penalty, or sum has been paid under
February 03/10/03 03/10/05 March 4, 2005 03/09/05 protest or duress. In any case, no such suit or proceeding shall be begun
2003 after the expiration of two years from the date of payment of the tax or
penalty.
May 2003 06/10/03 06/10/05 March 4, 2005 03/09/05
The preceding provisions seem at first blush conflicting. It will be noticed that,
whereas the first sentence requires a claim to be filed with the Collector of
Internal Revenue before any suit is commenced, the last makes imperative
With respect to the remittance filed on March 10, 2003, the Court agrees with the bringing of such suit within two years from the date of collection. But the
the ratiocination of the CTA En Banc in debunking the alleged failure to conflict is only apparent and the two provisions easily yield to reconciliation,
exhaust administrative remedies. Had CBK Power awaited the action of the which it is the office of statutory construction to effectuate, where possible, to
Commissioner on its claim for refund prior to taking court action knowing fully
give effect to the entire enactment.

To this end, and bearing in mind that the Legislature is presumed to have
understood the language it used and to have acted with full idea of what it
wanted to accomplish, it is fair and reasonable to say without doing violence
to the context or either of the two provisions, that by the first is meant simply
that the Collector of Internal Revenue shall be given an opportunity to
consider his mistake, if mistake has been committed, before he is sued, but
not, as the appellant contends that pending consideration of the claim, the
period of two years provided in the last clause shall be deemed
interrupted. Nowhere and in no wise does the law imply that the
Collector of Internal Revenue must act upon the claim, or that the
taxpayer shall not go to court before he is notified of the Collector’s
action. x x x. We understand the filing of the claim with the Collector of
Internal Revenue to be intended primarily as a notice of warning that
unless the tax or penalty alleged to have been collected erroneously or
illegally is refunded, court action will follow. x x x.61 (Emphases supplied)

That being said, the foregoing refund claims of CBK Power should all be
granted, and, the petition of the Commissioner in G.R. Nos. 193407-08 be
denied for lack of merit.chanrobleslaw

WHEREFORE, the petition in G.R. Nos. 193383-84 is GRANTED. The

Decision dated March 29, 2010 and the Resolution dated August 16, 2010 of
the Court of Tax Appeals (CTA) En Banc in C.T.A. E.B. Nos. 469 and 494 are
hereby REVERSED and SET ASIDE and a new one
entered REINSTATING the Decision of the CTA First Division dated August
28, 2008 ordering the refund in favor of CBK Power Company Limited the
amount of P15,672,958.42 representing its excess final withholding taxes for
the taxable years 2001 to 2003. On the other hand, the petition in G.R. Nos.
193407-08 is DENIED for lack of merit.

SO ORDERED.cralawlawlibrary

G.R. No. 193796 July 2, 2014
LAND BANK OF THE PHILIPPINES, Petitioner,
vs.
ATLANTA INDUSTRIES, INC., Respondent.
DECISION
PERLAS-BERNABE, J.:
This is a direct recourse1 to the Court from the Decision2 dated September 3,
2010 of the Regional Trial Court of Manila, Branch 21 (Manila RTC) in Civil
Case No. 09-122643 which declared null and void the results of the re-
bidding for the supply of water pipes conducted by the Bids and Awards
Committee (BAC) of the City Government of Iligan due to the use of bidding
documents outside of the rules and procedures prescribed under Republic
Act No. (RA) 9184,3 otherwise known as the "Government Procurement Act."
The Facts
On October 3, 2006, Land Bank of the Philippines (Land Bank) and the
International Bank for Reconstruction and Development4 (IBRD) entered into
Loan Agreement No. 4833-PH5 for the implementation. of the IBRD's
"Support for Strategic Local Development and Investment . Project"
(S2LDIP). The loan facility in the amount of JP¥11,710,000,000.00 was fully
guaranteed by the Government of the Philippines and conditioned upon the
participation of at least two (2) local government units by way of a Subsidiary
Loan Agreement (SLA) with Land Bank.6
On February 22, 2007, Land Bank entered into an SLA 7 with the City
Government of Iligan to finance the development and expansion of the city's
water supply system, which had two (2) components, namely: (a) the
procurement of civil works; and ( b) the procurement of goods for the supply
and delivery of various sizes of PE 100 HDPE pipes and fittings. 8 The SLA
expressly provided that the goods, works, and services to be financed out of
the proceeds of the loan with Land Bank were to be "procured in accordance
with the provisions of Section I of the 'Guidelines: Procurement under IBRD
Loans and IDA Credits' x x x, and with the provisions of [the] Schedule
4."9Accordingly, the City Government of Iligan, through its BAC, conducted a
public bidding for the supply and delivery of various sizes of PE 100 HDPE
pipes and fittings using the IBRD Procurement Guidelines. 10
Respondent Atlanta Industries, Inc. (Atlanta) participated in the said bidding
and came up with the second to the lowest bid in the amount of
₱193,959,354.34.11
However, in a letter12 dated July 27, 2009, the BAC informed Atlanta that the
bidding was declared a failure upon the recommendation of Land "Bank due
to the IBRD 's non-concurrence with the Bid Evaluation Report. Moreover, in
a letter13 dated August 28, 2009, the BAC informed Atlanta of its
disqualification from the bidding because it lacked several documentary
requirements.
In response, Atlanta, through a letter14 dated September 8, 2009, sought to
correct the BAC's erroneous assumption that it failed to submit the necessary
documents and to have its disqualification reconsidered. It expressed its
objection against the BAC's declaration of a failure of bidding, asserting that
had it not been improperly disqualified there would have also been no need
to declare the bidding a failure because its tender would be the sole
responsive bid necessary to save the bid process.15
However, in a Resolution16 dated September 25, 2009, the BAC deemed it
futile to reconsider Atlanta's disqualification in view of the fact that the bidding
had already been declared a failure because of noted violations of the IBRD
Procurement Guidelines and that, unless the BAC conducts a new bidding on
the project, it would not be able to obtain a "no objection" from .the World
Bank. Atlanta did not pursue the matter further with the BAC and opted,
instead, to participate in the re-bidding of the project, the notice of which was
published anew on October 30, 2009.17
This notwithstanding, Atlanta, in a letter18 dated November 16, 2009, called
the BAC's attention to its use of Bidding Documents19 which, as it purported,
not only failed to conform with the Third Edition of the Philippine Bidding
Documents for the Procurement of Goods (PBDs)20 prescribed by the
Government Procurement Policy Board (GPPB) but also contained
numerous provisions that were not in accordance with RA 9184 and its
Implementing Rules and Regulations (IRR). During the pre-bid conference,
the BAC declared that the project was not covered by RA 9184 or by any of
the GPPB 's issuances. It further announced that the bid opening would be
conducted on December 14, 2009.21
Apprehensive of the BAC's use of bidding documents that appeared to be in
contravention of RA 9184 and its IRR, Atlanta filed on December 10, 2009 a
Petition for Prohibition and Mandamus22 with an urgent prayer for the
issuance of a temporary restraining order (TRO) and/or writ of preliminary
injunction to enjoin the re-bidding .of the project against the City Government
of Iligan, the BAC, and Land Bank before the Manila RTC, docketed as Civil
Case No. 09-122643 (Petition for Prohibition).
In their separate comments on the said petition, Land Bank and the BAC
asserted that the case was dismissible for improper. venue, mootness, non-
exhaustion of administrative remedies, failure to implead an indispensable
party, and the inapplicability of RA 918.4.23
In the meantime, with Atlanta's Urgent Ex Parte Motion for the Issuance of a
72-Hour TRO and Special Raffle24having been denied,25 the re-bidding of the
project was conducted (as scheduled on December 14, 2009), with four .C 4)
bidders participating and submitting the following bids:
1. Atlanta Industries, Inc. ₱141,289,680.50
2. Moldex Products, Inc. ₱172,727,052.49
3. Dong Won Plastics, Inc. ₱189,184,599.74
4. Thai-Asia/Junnie Industries ₱191,900.020.0026
Thereupon, the case proceeded with the parties' submission of their
respective memoranda27 and the denial of Atlanta's prayer for the issuance of
an injunctive writ.28
The Manila RTC Ruling
In a Decision29 dated September 3, 2010, the Manila RTC declared the
subject bidding null and void on the ground that it was done contrary to the
rules and procedure prescribed in RA 9184 and its IRR. Consequently, it
enjoined the City Government of Iligan and. its BAC from entering into and/or
implementing the contract for the supply of water pipes with Moldex
Products, Inc.30
The Manila RTC also ruled that the City Government of Iligan cannot claim
exemption from the application of RA 9184 and its IRR by virtue of Loan
Agreement No. 48~3-PH with the IBRD because it was Land Bank, and not
the City Government of Iligan, which was the party to the same. Moreover,
it .held that the IBRD could not have passed on its status as an international
institution exempt from RA 9184 simply because it loaned money to Land
Bank.31 It added that the SLA subsequently executed by Land Bank with the
City Government of Iligan cannot validly provide for the use of bidding
procedures different from those provided under RA 9184 because the said
SLA is not in the nature of an international agreement similar to the Loan
Agreement with the IBRD.32
The Manila RTC finally concluded that in view of GPPB Resolution No. 05-
2009 (September 30, 2009) which requires "all branches, agencies,
departments, bureaus, offices and instrumentalities of the Government,
including x x x local government units x x x to use the Philippine Bidding
Documents Third Edition for all their procurement activities," the City
Government of Iligan and its BAC exceeded their jurisdiction in conducting
the public bidding using the questioned bidding documents. 33
Dissatisfied, Land Bank elevated the matter directly to the Court, vigorously
asserting, among others, that: (a) venue was improperly laid; and (b) the
public bidding for the supply of water pipes to the City of Iligan's Water
Supply System Development and Expansion Project is exempt from the
application of RA 9184 and its IRR by virtue of the SLA being .a related and
subordinate covenant to Loan Agreement No. 4833-PH. 34
The Issues Before the Court
The main issues presented for the Court's resolution are: (a) whether or not
the Manila RTC has jurisdiction over the instant prohibition case and
eventually issue the writ prayed for; and (b) whether or not the SLA between
the Land Bank and the City Government of Iligan is an executive agreement
similar to Loan Agreement No. 4833-PH such that the procurement of water
pipes by the BAC of the City Government of Iligan should be deemed exempt
from the application of RA 9184.
The Court's Ruling
The petition is meritorious.
The Court first resolves the procedural issues of this case, then proceeds to
its substantive aspects.
A. PROCEDURAL ISSUES:
The Manila RTC's Lack of Jurisdiction to
Issue the Writ of Prohibition Subject of
this Case; and Atlanta's Failure to
Exhaust Administrative Remedies.
Preliminarily, Land Bank asserts that the Petition for Prohibition was
improperly filed before the Manila RTC considering that the acts sought to be
enjoined, i.e., the public bidding for the supply of water pipes, are beyond the
said court's territorial jurisdiction.35 Atlanta, for its part, counter-argues that
the acts of Land Bank are as much to be enjoined for causing the City
Government of Iligan and its BAC to continuously violate the provisions of RA
9184, its IRR, and the PBDs in the conduct of the public bidding 36 and that
the filing of the prohibition case in the City of Manila was in accordance with
the rules on venue given that Land Bank's main office is in the City of
Manila.37
The Court finds for Land Bank.
A petition for prohibition is a special civil action that seeks for a judgment
ordering the respondent to desist from continuing with the commission of an
act perceived to be illegal. Section 2, Rule 65 of the Rules of Court (Rules)
reads:
Sec. 2. Petition for Prohibition. - When the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-
judicial or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the respondent to desist
from further proceedings in the action or matter specified therein, or
otherwise granting such incidental reliefs as law and justice may require.
x x x x (Emphasis supplied)
While the Court, Court of Appeals and Regional Trial Court have original
concurrent jurisdiction to issue writs of certiorari, prohibition and mandamus,
if what is assailed relates to "acts or omissions of a lower court or of a
corporation, board, officer or person," the petition must be filed "in the
Regional Trial Court exercising jurisdiction over the territorial area as defined
by the Court." Section 4 of the same Rules provides that:
Sec. 4. When and Where to file the petition. -The petition shall be filed not
later than sixty (60) days from notice of the judgment, order or resolution. In
case a motion for reconsideration or new trial is timely filed, whether such
motion is required or not, the petition shall be filed not later than sixty (60)
days counted from the notice of the denial of the motion.
If the petition relates to an act or an omission of a municipal trial court or of a
corporation, a board, an officer or a person, it shall be filed with the Regional
Trial Court exercising jurisdiction over the territorial area as defined by the
Supreme Court. H may also be filed with the Court of Appeals or with the
Sandiganbayan, whether or not the same is .in aid of the court's appellate
jurisdiction. If the petition involves an act or an omission of a quasi-judicial
agency, unless otherwise provided by law or these rules, the petition shall be
filed with and be cognizable only by the Court of Appeals.
x x x x (Emphasis supplied)
The foregoing rule corresponds to Section 21 ( 1) of Batas Pambansa Blg.
129,38 otherwise known as "The Judiciary Reorganization Act of 1980" (BP
129), which gives Regional Trial Courts original jurisdiction over cases of
certiorari, prohibition, mandamus, quo warranto, habeas corpus, and
injunction but lays down the limitation that the writs issued therein are
enforceable only within their respective territorial jurisdictions. The pertinent
provision reads:
Sec. 21. Original jurisdiction in other cases. - Regional Trial Courts shall
exercise original jurisdiction:
(1) In the issuance of writs of certiorari: prohibition, mandamus, quo
warranto, habeas corpus and injunction, which may be enforced in any part
of their respective regions;
x x x x (Emphasis supplied)
The Court already ruled in numerous cases, beginning with the very early
case of Costaño v. Lobingier,39 that the power to administer justice conferred
upon judges of the Regional Trial Courts, formerly Courts of First Instance
(CFI), can only be exercised within the limits of their respective districts,
outside of which they have no jurisdiction whatsoever. Applying previous
legislation similar to the present Section 21 of BP 129 and its complementary
provision, i.e., Section 4, Rule 65 of the Rules, the Court held in said case
that the CFI of Leyte had no power to issue writs of injunction and certiorari
against the Justice of the Peace of Manila, as the same was outside the
territorial boundaries of the issuing court. Also, in Samar Mining Co., Inc. v.
Arnado,40 a petition for certiorari and prohibition with preliminary injunction
was filed in the CFI of Manila to question the authority of the Regional
Administrator and Labor Attorney of the Department of Labor in Cebu City to
hear a complaint for sickness compensation in Catbalogan, Samar and to
enjoin said respondents from conducting further proceedings thereat. The
Court affirmed the dismissal . of the case on the ground of improper venue,
holding that the CFI of Manila had no authority to issue writs of injunction,
certiorari, and prohibition affecting persons outside its territorial boundaries.
Further, in both Cudiamat v. Torres (Cudiamat)41 and National Waterworks
and Sewerage Authority v. Reyes42(NAWASA), the losing bidders succeeded
in securing an injunctive writ from the CFI of Rizal in order to . restrain, in
Cudiamat, the implementation of an award on a public bidding for the supply
of a police call and signal box system for the City of Manila, and, in
NAWASA, the conduct of the public bidding for the supply of steel pipes for
its Manila and Suburbs Waterworks Project. The Court held in both cases
that the injunction issued by the CFI of Rizal purporting to restrain acts
outside the province of Rizal was null and void for want of jurisdiction.
Undoubtedly, applying the aforementioned precepts and pronouncements to
the instant case, the writ of prohibition issued by the Manila RTC in order to
restrain acts beyond the bounds of the territorial limits of its jurisdiction (i.e.,
in Iligan City) is null and void.
Also on a matter of procedure, the Court further discerns that the Manila RTC
should have dismissed the case outright for failure of Atlanta to exhaust
administrative remedies. Under RA 9184, the decisions of the BAC in all
stages of procurement may be protested. to the head of the procuring entity
through a verified position paper and upon payment of a protest fee. 43 The
necessity for the complaining bid participant to complete the protest process
before resorting to court action cannot be overemphasized. It is a condition
precedent to the court's taking cognizance of an action that assails a bid
process.44 When precipitately taken prior to the completion of the protest
process, such case shall be dismissed for lack of jurisdiction. 45 While Atlanta
may have written the BAC a letter objecting to some of the terms and
conditions contained in the bidding documents to be used for the re-bidding,
its action fell short of the required protest. It failed to follow through with' its
protest and opted instead to participate in the re-bidding with full knowledge
that the IBRD Procurement Guidelines were to be followed throughout the
conduct of the bid. Having failed to observe the protest procedure required
by law, Atlanta's case should not have prospered with the RTC altogether.
With the procedural matters having been resolved, the Court now proceeds
to discuss the substantive aspect of this case concerning the SLA and Land
Bank's claimed exemption from the provisions of RA 9184.
B. SUBSTANTIVE ISSUES:
The Applicability of the Bidding
Procedure under RA 9184; and the
Nature of Loan No. 4833-PH · and its
Relation to the SLA.
While mandating adherence to the general policy of the government that
contracts for the procurement of civil works or supply of goods and
equipment shall be undertaken only after competitive public bidding, RA 9184
recognizes the country's commitment to abide by its obligations under any
treaty or international or executive agreement. This is pertinently provided in
Section 4 of RA 9184 which reads as follows:
Sec. 4. Scope and Application. - 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 the
government, its department, offices and agencies, including government
owned and/or -controlled corporations and local government units, subject to
the provisions of Commonwealth Act No. 138.1âwphi1 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. (Emphasis
supplied)
The IRR of RA 9184 further supplements the law's treatment of treaties and
international or executive agreements as follows:
Section 4. Scope and Application of the IRR
4.1 This IRR shall apply to all procurement of any branch, agency,
department, bureau, office or instrumentality of the GOP, including
government-owned and/or -controlled corporations (GOCCs),
government financial institutions (GFis), state universities and
colleges (SUCs) and local government units (LGUs).
4.2 Any Treaty or International or Executive Agreement to which the
GOP is a signatory affecting the subject matter of the Act and this
IRR shall be observed. In case of conflict between the terms of the
Treaty or International or Executive Agreement and this IRR, the
former shall prevail.
4.3 Unless the Treaty or International or Executive Agreement
expressly provides use of foreign government/foreign or international
financing institution procurement procedures and guidelines, this IRR
shall apply to Foreign-funded Procurement for goods, infrastructure
projects, and consulting services by the GOP.
Consistent with the policies and principles set forth in Sections 2 and 3 of this
IRR, the GOP negotiating panels shall adopt, as its default position, use of
this IRR, or at the very least, selection through competitive bidding, in all
Foreign-funded Procurement. If the Treaty or International or Executive
Agreement states otherwise, then the negotiating panels shall explain in
writing the reasons therefor. (Emphasis supplied)
While Atlanta admits that there are exceptions to the application of RA 9184,
it posits that the City Government of Iligan could not claim to be exempt
under any of the enumerated instances because it is not a party to the IBRD
Loan Agreement.46 It further asserts that a provision in the SLA between
Larid Bank and the City Government of Iligan providing for procurement
procedures different from that required under RA 9184 would not be valid
since it is not a treaty or an executive agreement in the way that Loan
Agreement, No. 4833-PH is.
The argument lacks merit.
As the parties have correctly discerned, Loan Agreement No. 4833-PH is in
the nature of an executive agreement. In Bayan Muna v. Romulo 47 (Bayan
Muna) the Court defined an international agreement as one 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,"48 and further expounded that it may be in
the form of either (a) treaties that require legislative concurrence after
executive ratification; or ( b) 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.49 Examining its features, Loan Agreement No. 4833-PH between the
IBRD and the Land Bank is an integral component of the Guarantee
Agreement executed by the Government of the Philippines as a subject of
international law possessed of a treaty-making capacity, and the IBRD,
which, as an international lending institution organized by world governments
to provide loans conditioned upon the guarantee of repayment by the
borrowing sovereign state, is likewise regarded a subject of international law
and possessed of the capacity to enter into executive agreements with
sovereign states. Being similar to a treaty but without requiring legislative
concurrence, Loan Agreement No. 4833-PH - following the definition given in
the Bayan Muna case - is an executive agreement and is, thus, governed by
international law. Owing to this classification, the Government of the
Philippines is therefore obligated to observe its terms and conditions under
the rule of pacta sunt servanda, a fundamental maxim of international law
that requires the parties to keep their agreement in good faith. 50 It bears
pointing out that the pacta sunt servanda rule has become part of the law of
the land through the incorporation clause found under Section 2, Article II of
the 1987 Philippine Constitution, which states 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." Keeping in mind the foregoing
attributions, the .Court now examines the SLA and its relation with Loan
Agreement No. 4833-PH.
As may be palpably observed, the terms and conditions of Loan Agreement
No. 4833-PH, being a project-based and government-guaranteed loan
facility, were incorporated and made part of the SLA that was subsequently
entered into by Land Bank with the City Government of
Iligan.51 Consequently, this means that the SLA cannot be treated as an
independent and unrelated contract but as a conjunct of, or having a joint
and simultaneous occurrence with, Loan Agreement No. 4833-PH. Its nature
and consideration, being a mere accessory contract of Loan Agreement No.
4833-PH, are thus the same as that of its principal contract from which it
receives life and without which it cannot exist as an independent
contract.52 Indeed, the accessory follows the principal;53 and, concomitantly,
accessory contracts should not be read independently of the main
contract.54 Hence, as Land Bank correctly puts it, the SLA has attained
indivisibility with the Loan Agreement and the Guarantee Agreement through
the incorporation of each other's terms and conditions such that the character
of one has likewise become the character of the other.
Considering that Loan Agreement No. 4833-PH expressly provides that the
procurement of the goods to be financed from the loan proceeds shall be in
accordance with the IBRD Guidelines and the provisions of Schedule 4, and
that the accessory SLA contract merely follows its principal 's terms and
conditions, the procedure for competitive public bidding prescribed under RA
9184 therefore finds no application to the procurement of goods for the Iligan
City Water Supply System Development and Expansion Project. The validity
of similar stipulations in foreign loan agreements requiring the observance of
IBRD Procurement Guidelines in the procurement process has, in fact, been
previously upheld by the Court in the case of Department of Budget and
Management Procurement Service (DBMPS) v. Kolonwel Trading, 55 viz.:
The question as to whether or not foreign loan agreements with international
financial institutions, such as Loan No. 7118-PH, partake of an executive or
international agreement within the purview of Section 4 of R.A. No. 9184, has
been answered by the Court in the affirmative in [Abaya v. Sec. Ebdane, Jr.,
544 Phil. 645 (2007)]. Significantly, Abaya declared that the RP-JBIC loan
agreement was to be of governing application over the CP I project and that
the JBIC · Procurement Guidelines, as stipulated in the loan agreement, shall
primarily govern the procurement of goods necessary to implement the main
project.
Under the fundamental international law principle of pacta sunt servanda,
which is in fact embodied in the afore-quoted Section 4 of R.A. No. 9184, the
RP, as borrower, bound itself to perform in good faith its duties and obligation
under Loan No. 7118-PH. Applying this postulate in the concrete to this case,
the IABAC was legally obliged to comply with, or accord, primacy to, the WB
Guidelines on the conduct and implementation of the bidding/procurement
process in question.56

With the nature and treatment of Loan Agreement No. 4833-PH as well as its
accessory SLA herein explained, the Court thus holds that the RTC
committed reversible error in ruling that the provisions of RA 9184 were to be
applied in this case. Quite the contrary, it is the IBRD Guidelines and the
provisions of Schedule 4 which should govern. As such, the procurement of
water pipes by the BAC of the City Government of Iligan -as Land Bank
meritoriously submits in its petition - is beyond the purview of RA 9184,
yielding as it should to the express stipulations found in the executive
agreement, to which the latter's accessory merely follows.

In view of all these errors, both on procedural and substantive counts, the
Court is hereby bound to reverse the trial court's decision and accordingly
grant the present petition.

WHEREFORE, the petition is GRANTED. The Decision dated September 3,

2010 of the Regional Trial Court of Manila, Branch 21 (Manila RTC) in Civil
Case No. 09-122643 is hereby REVERSED and SET ASIDE. The Petition for
Prohibition and Mandamus filed before the Manila RTC is DISMISSED.

SO ORDERED.

G.R. No. 212426
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO
"DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN, PACIFICO A.
AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR.,
EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-
ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT OF
NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERT DEL ROSARIO, JR.,
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
FLORENCIO ABAD, AND ARMED FORCES OF THE PHILIPPINES CHIEF
OF STAFF GENERAL EMMANUEL T. BAUTISTA, Respondents.
x-----------------------x
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY ITS
SECRETARY GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY-
LIST REPRESENTATIVES NERI J. COLMENARES AND CARLOS
ZARATE, GABRIELA WOMEN'S PARTY-LIST REPRESENTATIVES LUZ
ILAGAN AND EMERENCIANA DE JESUS, ACT TEACHERS PARTY-LIST
REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST
REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST
REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG
MAMAMAYAN (MAKABAYAN), REPRESENTED BY SATURNINO
OCAMPO AND LIZA MAZA, BIENVENIDO LUMBERA, JOEL C.
LAMANGAN, RAFAEL MARIANO, SALVADOR FRANCE, ROGELIO M.
SOLUTA, AND CLEMENTE G. BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY VOLTAIRE
GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT
DEL ROSARIO, EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,
ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL
EMMANUEL T. BAUTISTA, DEFENSE UNDERSECRETARY PIO
LORENZO BATINO, AMBASSADOR LOURDES YPARRAGUIRRE,
AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF JUSTICE
UNDERSECRETARY FRANCISCO BARAAN III, AND DND ASSISTANT
SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE
QUILOP AS CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA, Respondents.
x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON, ELMER
LABOG, CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND GAITE,
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO,
REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO USTAREZ,
NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA FLORES, AND
ARMANDO TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality of the Enhanced
Defense Cooperation Agreement (EDCA) between the Republic of the
Philippines and the United States of America (U.S.). Petitioners allege that
respondents committed grave abuse of discretion amounting to lack or
excess of jurisdiction when they entered into EDCA with the U.S., 2 claiming
that the instrument violated multiple constitutional provisions. 3 In reply,
respondents argue that petitioners lack standing to bring the suit. To support
the legality of their actions, respondents invoke the 1987 Constitution,
treaties, and judicial precedents.4
A proper analysis of the issues requires this Court to lay down at the outset
the basic parameters of the constitutional powers and roles of the President
and the Senate in respect of the above issues. A more detailed discussion of
these powers and roles will be made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE
PRESIDENT: DEFENSE, FOREIGN RELATIONS, AND EDCA
A. The Prime Duty of the State and the Consolidation of Executive
Power in the President
Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang
buong katapatan at sigasig ang aking mga tungkulin bilang Pangulo (o
Pangalawang Pangulo o Nanunungkulang Pangulo) ng Pilipinas,
pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang
mga batas nito, magiging makatarungan sa bawat tao, at itatalaga ang aking
sarili sa paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.
- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon
sa Saligang Batas5
The 1987 Constitution has "vested the executive power in the President of
the Republic of the Philippines."6 While the vastness of the executive power
that has been consolidated in the person of the President cannot be
expressed fully in one provision, the Constitution has stated the prime duty of
the government, of which the President is the head:
The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal military or civil service. 7 (Emphases
supplied)
B. The duty to protect the territory and the citizens of the Philippines,
the power to call upon the people to defend the State, and the President
as Commander-in-Chief
The duty to protect the State and its people must be carried out earnestly
and effectively throughout the whole territory of the Philippines in accordance
with the constitutional provision on national territory. Hence, the President of
the Philippines, as the sole repository of executive power, is the guardian of
the Philippine archipelago, including all the islands and waters embraced
therein and all other territories over which it has sovereignty or jurisdiction.
These territories consist of its terrestrial, fluvial, and aerial domains; including
its territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas; and the waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and dimensions. 8
To carry out this important duty, the President is equipped with authority over
the Armed Forces of the Philippines (AFP),9 which is the protector of the
people and the state. The AFP's role is to secure the sovereignty of the State
and the integrity of the national territory. 10 In addition, the Executive is
constitutionally empowered to maintain peace and order; protect life, liberty,
and property; and promote the general welfare.11
In recognition of these powers, Congress has specified that the President
must oversee, ensure, and reinforce our defensive capabilities against
external and internal threats12 and, in the same vein, ensure that the country
is adequately prepared for all national and local emergencies arising from
natural and man-made disasters.13
To be sure, this power is limited by the Constitution itself. To illustrate, the
President may call out the AFP to prevent or suppress instances of lawless
violence, invasion or rebellion,14 but not suspend the privilege of the writ of
habeas corpus for a period exceeding 60 days, or place the Philippines or
any part thereof under martial law exceeding that same span. In the exercise
of these powers, the President is also duty-bound to submit a report to
Congress, in person or in writing, within 48 hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus;
and Congress may in turn revoke the proclamation or suspension. The same
provision provides for the Supreme Court's review of the factual basis for the
proclamation or suspension, as well as the promulgation of the decision
within 30 days from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ in the
conduct of foreign relations.15 Since every state has the capacity to interact
with and engage in relations with other sovereign states, 16 it is but logical that
every state must vest in an agent the authority to represent its interests to
those other sovereign states.
The conduct of foreign relations is full of complexities and consequences,
sometimes with life and death significance to the nation especially in times of
war. It can only be entrusted to that department of government which can act
on the basis of the best available information and can decide with
decisiveness. x x x It is also the President who possesses the most
comprehensive and the most confidential information about foreign countries
for our diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-sensitive
military intelligence data. In fine, the presidential role in foreign affairs is
dominant and the President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences. 17
The role of the President in foreign affairs is qualified by the Constitution in
that the Chief Executive must give paramount importance to the sovereignty
of the nation, the integrity of its territory, its interest, and the right of the
sovereign Filipino people to self-determination.18 In specific provisions, the
President's power is also limited, or at least shared, as in Section 2 of Article
II on the conduct of war; Sections 20 and 21 of Article VII on foreign loans,
treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article
VIII on the judicial review of executive acts; Sections 4 and 25 of Article XVIII
on treaties and international agreements entered into prior to the Constitution
and on the presence of foreign military troops, bases, or facilities.
D. The relationship between the two major presidential functions and
the role of the Senate
Clearly, the power to defend the State and to act as its representative in the
international sphere inheres in the person of the President. This power,
however, does not crystallize into absolute discretion to craft whatever
instrument the Chief Executive so desires. As previously mentioned, the
Senate has a role in ensuring that treaties or international agreements the
President enters into, as contemplated in Section 21 of Article VII of the
Constitution, obtain the approval of two-thirds of its members.
Previously, treaties under the 1973 Constitution required ratification by a
majority of the Batasang Pambansa,19except in instances wherein the
President "may enter into international treaties or agreements as the national
welfare and interest may require."20 This left a large margin of discretion that
the President could use to bypass the Legislature altogether. This was a
departure from the 1935 Constitution, which explicitly gave the President the
power to enter into treaties only with the concurrence of two-thirds of all the
Members of the Senate.21 The 1987 Constitution returned the Senate's
power22 and, with it, the legislative's traditional role in foreign affairs. 23
The responsibility of the President when it comes to treaties and international
agreements under the present Constitution is therefore shared with the
Senate. This shared role, petitioners claim, is bypassed by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
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
To further strengthen their defense and security relationship, 59 the Philippines
and the U.S. next entered into the MDT in 1951. Concurred in by both the
Philippine60 and the U.S.61 Senates, the treaty has two main features: first, it
allowed for mutual assistance in maintaining and developing their individual
and collective capacities to resist an armed attack; 62 and second, it provided
for their mutual self-defense in the event of an armed attack against the
territory of either party.63 The treaty was premised on their recognition that an
armed attack on either of them would equally be a threat to the security of
the other.64
C. Current legal regime on the presence of U.S. armed forces in the
country
In view of the impending expiration of the 1947 MBA in 1991, the Philippines
and the U.S. negotiated for a possible renewal of their defense and security
relationship.65 Termed as the Treaty of Friendship, Cooperation and Security,
the countries sought to recast their military ties by providing a new framework
for their defense cooperation and the use of Philippine installations. 66 One of
the proposed provisions included an arrangement in which U.S. forces would
be granted the use of certain installations within the Philippine naval base in
Subic.67 On 16 September 1991, the Senate rejected the proposed treaty. 68
The consequent expiration of the 1947 MBA and the resulting paucity of any
formal agreement dealing with the treatment of U.S. personnel in the
Philippines led to the suspension in 1995 of large-scale joint military
exercises.69In the meantime, the respective governments of the two countries
agreed70 to hold joint exercises at a substantially reduced level. 71 The military
arrangements between them were revived in 1999 when they concluded the
first Visiting Forces Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT," 73 the VFA has laid
down the regulatory mechanism for the treatment of U.S. military and civilian
personnel visiting the country.74 It contains provisions on the entry and
departure of U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of certain claims;
the importation and exportation of equipment, materials, supplies, and other
pieces of property owned by the U.S. government; and the movement of U.S.
military vehicles, vessels, and aircraft into and within the country. 75 The
Philippines and the U.S. also entered into a second counterpart agreement
(VFA II), which in turn regulated the treatment of Philippine military and
civilian personnel visiting the U.S.76 The Philippine Senate concurred in the
first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started
arriving in Mindanao to take part in joint military exercises with their Filipino
counterparts.78 Called Balikatan, these exercises involved trainings aimed at
simulating joint military maneuvers pursuant to the MDT. 79
In the same year, the Philippines and the U.S. entered into the Mutual
Logistics Support Agreement to "further the interoperability, readiness, and
effectiveness of their respective military forces"80 in accordance with the
MDT, the Military Assistance Agreement of 1953, and the VFA. 81 The new
agreement outlined the basic terms, conditions, and procedures for
facilitating the reciprocal provision of logistics support, supplies, and services
between the military forces of the two countries.82 The phrase "logistics
support and services" includes billeting, operations support, construction and
use of temporary structures, and storage services during an approved activity
under the existing military arrangements.83 Already extended twice, the
agreement will last until 2017.84
D. The Enhanced Defense Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct
activities within certain "Agreed Locations" in the country. It was not
transmitted to the Senate on the executive's understanding that to do so was
no longer necessary.85 Accordingly, in June 2014, the Department of Foreign
Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes confirming
the completion of all necessary internal requirements for the agreement to
enter into force in the two countries.86
According to the Philippine government, the conclusion of EDCA was the
result of intensive and comprehensive negotiations in the course of almost
two years.87 After eight rounds of negotiations, the Secretary of National
Defense and the U.S. Ambassador to the Philippines signed the agreement
on 28 April 2014.88 President Benigno S. Aquino III ratified EDCA on 6 June
2014.89 The OSG clarified during the oral arguments90 that the Philippine and
the U.S. governments had yet to agree formally on the specific sites of the
Agreed Locations mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the
constitutionality of EDCA. They primarily argue that it should have been in
the form of a treaty concurred in by the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were concluded and
the parties ordered to file their respective memoranda, the Senators adopted
Senate Resolution No. (SR) 105.91 The resolution expresses the "strong
sense"92 of the Senators that for EDCA to become valid and effective, it must
first be transmitted to the Senate for deliberation and concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive Department
committed grave abuse of discretion in entering into EDCA in the form of an
executive agreement. For this reason, we cull the issues before us:
A. Whether the essential requisites for judicial review are
present
B. Whether the President may enter into an executive
agreement on foreign military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the
Constitution, as well as with existing laws and treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have been
satisfied
Petitioners are hailing this Court's power of judicial review in order to strike
down EDCA for violating the Constitution. They stress that our fundamental
law is explicit in prohibiting the presence of foreign military forces in the
country, except under a treaty concurred in by the Senate. Before this Court
may begin to analyze the constitutionality or validity of an official act of a
coequal branch of government, however, petitioners must show that they
have satisfied all the essential requisites for judicial review. 93
Distinguished from the general notion of judicial power, the power of judicial
review specially refers to both the authority and the duty of this Court to
determine whether a branch or an instrumentality of government has acted
beyond the 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. 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 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 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.
139
The OSG, on the other hand, insists 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
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 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 treaties 167 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 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 105 171 that EDCA
must be submitted to the Senate in the form of a treaty for concurrence by at
least two-thirds of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21 and
Article XVIII, Section 25) to support its position. Compared with the lone
constitutional provision that the Office of the Solicitor General (OSG) cites,
which is Article XVIII, Section 4(2), which includes the constitutionality of
"executive agreement(s)" among the cases subject to the Supreme Court's
power of judicial review, the Constitution clearly requires submission of
EDCA to the Senate. Two specific provisions versus one general provision
means that the specific provisions prevail. The term "executive agreement" is
"a term wandering alone in the Constitution, bereft of provenance and an
unidentified constitutional mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation
even added that the MDT, which the Executive claims to be partly
implemented through EDCA, is already obsolete.
There are two insurmountable obstacles to this Court's agreement with SR
105, as well as with the comment on interpellation made by Senator
Santiago.
First, the concept of "executive agreement" is so well-entrenched in this
Court's pronouncements on the powers of the President. When the Court
validated the concept of "executive agreement," it did so with full knowledge
of the Senate's role in concurring in treaties. It was aware of the
problematique of distinguishing when an international agreement needed
Senate concurrence for validity, and when it did not; and the Court continued
to validate the existence of "executive agreements" even after the 1987
Constitution.172 This follows a long line of similar decisions upholding the
power of the President to enter into an executive agreement. 173
Second, the MDT has not been rendered obsolescent, considering that as
late as 2009,174 this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25,
inevitably leads to the conclusion that it applies only to a proposed
agreement between our government and a foreign government, whereby
military bases, troops, or facilities of such foreign government would be
"allowed" or would "gain entry" Philippine territory.
Note that the provision "shall not be allowed" is a negative injunction. This
wording signifies that the President is not authorized by law to allow foreign
military bases, troops, or facilities to enter the Philippines, except under a
treaty concurred in by the Senate. Hence, the constitutionally restricted
authority pertains to the entry of the bases, troops, or facilities, and not to the
activities to be done after entry.
Under the principles of constitutional construction, of paramount
consideration is the plain meaning of the language expressed in the
Constitution, or the verba legis rule.175 It is presumed that the provisions have
been carefully crafted in order to express the objective it seeks to attain. 176 It
is incumbent upon the Court to refrain from going beyond the plain meaning
of the words used in the Constitution. It is presumed that the framers and the
people meant what they said when they said it, and that this understanding
was reflected in the Constitution and understood by the people in the way it
was meant to be understood when the fundamental law was ordained and
promulgated.177 As this Court has often said:
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 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
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 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.
Executive agreements may dispense with the requirement of Senate
concurrence because of the legal mandate with which they are concluded. As
culled from the afore-quoted deliberations of the Constitutional Commission,
past Supreme Court Decisions, and works of noted scholars, 208 executive
agreements merely involve arrangements on the implementation
of existing policies, rules, laws, or agreements. They are concluded (1) to
adjust the details of a treaty;209 (2) pursuant to or upon confirmation by an act
of the Legislature;210 or (3) in the exercise of the President's independent
powers under the Constitution.211 The raison d'etre of executive agreements
hinges on prior constitutional or legislative authorizations.
The special nature of an executive agreement is not just a domestic variation
in international agreements. International practice has accepted the use of
various forms and designations of international agreements, ranging from the
traditional notion of a treaty - which connotes a formal, solemn instrument - to
engagements concluded in modem, simplified forms that no longer
necessitate ratification.212 An international agreement may take different
forms: treaty, act, protocol, agreement, concordat, compromis
d'arbitrage, convention, covenant, declaration, exchange of notes, statute,
pact, charter, agreed minute, memorandum of agreement, modus vivendi, or
some other form.213 Consequently, under international law, the distinction
between a treaty and an international agreement or even an executive
agreement is irrelevant for purposes of determining international rights and
obligations.
However, this principle does not mean that the domestic law
distinguishing treaties, international agreements, and executive
agreements is relegated to a mere variation in form, or that the constitutional
requirement of Senate concurrence is demoted to an optional constitutional
directive. There remain two very important features that
distinguish treaties from executive agreements and translate them into terms
of art in the domestic setting.
First, executive agreements must remain traceable to an express or implied
authorization under the Constitution, statutes, or treaties. The absence of
these precedents puts the validity and effectivity of executive agreements
under serious question for the main function of the Executive is to enforce
the Constitution and the laws enacted by the Legislature, not to defeat or
interfere in the performance of these rules.214 In turn, executive agreements
cannot create new international obligations that are not expressly allowed or
reasonably implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior to executive
agreements. Treaties are products of the acts of the Executive and the
Senate215 unlike executive agreements, which are solely executive
actions.216Because of legislative participation through the Senate, a treaty is
regarded as being on the same level as a statute. 217 If there is an
irreconcilable conflict, a later law or treaty takes precedence over one that is
prior.218 An executive agreement is treated differently. Executive agreements
that are inconsistent with either a law or a treaty are considered
ineffective.219 Both types of international agreement are nevertheless subject
to the supremacy of the Constitution.220
This rule does not imply, though, that the President is given carte blanche to
exercise this discretion. Although the Chief Executive wields the exclusive
authority to conduct our foreign relations, this power must still be exercised
within the context and the parameters set by the Constitution, as well as by
existing domestic and international laws. There are constitutional provisions
that restrict or limit the President's prerogative in concluding international
agreements, such as those that involve the following:
a. The policy of freedom from nuclear weapons within Philippine
territory221
b. The fixing of tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts, which must be pursuant
to the authority granted by Congress222
c. The grant of any tax exemption, which must be pursuant to a law
concurred in by a majority of all the Members of Congress223
 d. The contracting or guaranteeing, on behalf of the Philippines, of
foreign loans that must be previously concurred in by the Monetary
Board224
e. The authorization of the presence of foreign military bases, troops,
or facilities in the country must be in the form of a treaty duly
concurred in by the Senate.225
f. For agreements that do not fall under paragraph 5, the
concurrence of the Senate is required, should the form of the
government chosen be a treaty.
5. The President had the choice to enter into EDCA by way of an
executive agreement or a treaty.
No court can tell the President to desist from choosing an executive
agreement over a treaty to embody an international agreement, unless the
case falls squarely within Article VIII, Section 25.
As can be gleaned from the debates among the members of the
Constitutional Commission, they were aware that legally binding international
agreements were being entered into by countries in forms other than a treaty.
At the same time, it is clear that they were also keen to preserve the concept
of "executive agreements" and the right of the President to enter into such
agreements.
What we can glean from the discussions of the Constitutional Commissioners
is that they understood the following realities:
1. Treaties, international agreements, and executive agreements are
all constitutional manifestations of the conduct of foreign affairs with
their distinct legal characteristics.
a. Treaties are formal contracts between the Philippines and
other States-parties, which are in the nature of international
agreements, and also of municipal laws in the sense of their
binding nature.226
b. International agreements are similar instruments, the
provisions of which may require the ratification of a
designated number of parties thereto. These agreements
involving political issues or changes in national policy, as
well as those involving international agreements of a
permanent character, usually take the form of treaties. They
may also include commercial agreements, which are
executive agreements essentially, but which proceed from
previous authorization by Congress, thus dispensing with the
requirement of concurrence by the Senate.227
c. Executive agreements are generally intended to
implement a treaty already enforced or to determine the
details of the implementation thereof that do not affect the
sovereignty of the State.228
2. Treaties and international agreements that cannot be mere
executive agreements must, by constitutional decree, be concurred
in by at least two-thirds of the Senate.
3. However, an agreement - the subject of which is the entry of
foreign military troops, bases, or facilities - is particularly restricted.
The requirements are that it be in the form of a treaty concurred in by
the Senate; that when Congress so requires, it be ratified by a
majority of the votes cast by the people in a national referendum held
for that purpose; and that it be recognized as a treaty by the other
contracting State.
4. Thus, executive agreements can continue to exist as a species of
international agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the scope
of her constitutional authority and discretion when she chose to enter into the
RP-U.S. Non-Surrender Agreement in the form of an executive agreement,
instead of a treaty, and in ratifying the agreement without Senate
concurrence. The Court en banc discussed this intrinsic presidential
prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity,
partaking as it does of the nature of a treaty; hence, it must be duly
concurred in by the Senate. x x x x. Pressing its point, petitioner submits that
the subject of the Agreement does not fall under any of the subject-
categories that xx x may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and
settlement of claims.
The categorization of subject matters that may be covered by international
agreements mentioned in Eastern Sea Trading is not cast in stone. There
are no hard and fast rules on the propriety of entering, on a given
subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form
of agreement is the parties' intent and desire to craft an international
agreement in the form they so wish to further their respective
interests. Verily, the matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each
labor under the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact that - save for
the situation and matters contemplated in Sec. 25, Art. XVIII of the
Constitution - when a treaty is required, the Constitution does not classify
any subject, like that involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely prescribes is that treaties
need the concurrence of the Senate by a vote defined therein to complete
the ratification process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in the
external affairs of the nation is, as Bayan would put it, "executive
altogether." The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then
President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign
Affairs, acted within the scope of the authority and discretion vested in
her by the Constitution. At the end of the day, the President - by ratifying,
thru her deputies, the non-surrender agreement - did nothing more than
discharge a constitutional duty and exercise a prerogative that pertains
to her office. (Emphases supplied)
Indeed, in the field of external affairs, the President must be given a larger
measure of authority and wider discretion, subject only to the least amount of
checks and restrictions under the Constitution.229 The rationale behind this
power and discretion was recognized by the Court in Vinuya v. Executive
Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of
International Agreements and its Ratification, thus, correctly reflected the
inherent powers of the President when it stated that the DFA "shall determine
whether an agreement is an executive agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does not
look into whether an international agreement should be in the form of a treaty
or an executive agreement, save in cases in which the Constitution or a
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 1 236 and II237 of
the VFA. It later on found that the term "activities" was deliberately left
undefined and ambiguous in order to permit "a wide scope of undertakings
subject only to the approval of the Philippine government" 238 and thereby
allow the parties "a certain leeway in negotiation." 239 The Court eventually
ruled that the Terms of Reference fell within the sanctioned or allowable
activities, especially in the context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied the
provisions of the VFA on custody and detention to ascertain the validity of the
Romulo-Kenney Agreement.240 It eventually found that the two international
agreements were not in accord, since the Romulo-Kenney Agreement had
stipulated that U.S. military personnel shall be detained at the U.S. Embassy
Compound and guarded by U.S. military personnel, instead of by Philippine
authorities. According to the Court, the parties "recognized the difference
between custody during the trial and detention after conviction." 241 Pursuant
to Article V(6) of the VFA, the custody of a U.S. military personnel resides
with U.S. military authorities during trial. Once there is a finding of guilt,
Article V(l0) requires that the confinement or detention be "by Philippine
authorities."
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA
"substantially modifies or amends the VFA"242and follows with an
enumeration of the differences between EDCA and the VFA. While these
arguments will be rebutted more fully further on, an initial answer can already
be given to each of the concerns raised by his dissent.
The first difference emphasized is that EDCA does not only regulate visits as
the VFA does, but allows temporary stationing on a rotational basis of U.S.
military personnel and their contractors in physical locations with permanent
facilities and pre-positioned military materiel.
This argument does not take into account that these permanent facilities,
while built by U.S. forces, are to be owned by the Philippines once
constructed.243 Even the VFA allowed construction for the benefit of U.S.
forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows the
prepositioning of military materiel, which can include various types of
warships, fighter planes, bombers, and vessels, as well as land and
amphibious vehicles and their corresponding ammunition.244
However, the VFA clearly allows the same kind of equipment, vehicles,
vessels, and aircraft to be brought into the country. Articles VII and VIII of the
VFA contemplates that U.S. equipment, materials, supplies, and other
property are imported into or acquired in the Philippines by or on behalf of
the U.S. Armed Forces; as are vehicles, vessels, and aircraft operated by or
for U.S. forces in connection with activities under the VFA. These provisions
likewise provide for the waiver of the specific duties, taxes, charges, and fees
that correspond to these equipment.
The third difference adverted to by the Justice Leonen's dissent is that the
VFA contemplates the entry of troops for training exercises, whereas EDCA
allows the use of territory for launching military and paramilitary operations
conducted in other states.245 The dissent of Justice Teresita J. Leonardo-De
Castro also notes that VFA was intended for non-combat activides only,
whereas the entry and activities of U.S. forces into Agreed Locations were
borne of military necessity or had a martial character, and were therefore not
contemplated by the VFA.246
This Court's jurisprudence however established in no uncertain terms that
combat-related activities, as opposed to actual combat, were allowed under
the MDT and VFA, viz:
Both the history and intent of the Mutual Defense Treaty and the VFA support
the conclusion that combat-related activities as opposed to combat itself
such as the one subject of the instant petition, are indeed authorized. 247
Hence, even if EDCA was borne of military necessity, it cannot be said to
have strayed from the intent of the VFA since EDCA's combat-related
components are allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities actually
are. Both the VFA and EDCA deal with the presence of U.S. forces within the
Philippines, but make no mention of being platforms for activity beyond
Philippine territory. While it may be that, as applied, military operations under
either the VFA or EDCA would be carried out in the future the scope of
judicial review does not cover potential breaches of discretion but only actual
occurrences or blatantly illegal provisions. Hence, we cannot invalidate
EDCA on the basis of the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept not
contemplated in the VFA or the MDT: Agreed Locations, Contractors, Pre-
positioning, and Operational Control.248
As previously mentioned, these points shall be addressed fully and
individually in the latter analysis of EDCA's provisions. However, it must
already be clarified that the terms and details used by an implementing
agreement need not be found in the mother treaty. They must be sourced
from the authority derived from the treaty, but are not necessarily expressed
word-for-word in the mother treaty. This concern shall be further elucidated in
this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA
does not have provisions that may be construed as a restriction on or
modification of obligations found in existing statues, including the jurisdiction
of courts, local autonomy, and taxation. Implied in this argument is that EDCA
contains such restrictions or modifications.249
This last argument cannot be accepted in view of the clear provisions of
EDCA. Both the VFA and EDCA ensure Philippine jurisdiction in all instances
contemplated by both agreements, with the exception of those outlined by
the VFA in Articles III-VI. In the VFA, taxes are clearly waived whereas in
EDCA, taxes are assumed by the government as will be discussed later on.
This fact does not, therefore, produce a diminution of jurisdiction on the part
of the Philippines, but rather a recognition of sovereignty and the rights that
attend it, some of which may be waived as in the cases under Articles III-VI
of the VFA.
Taking off from these concerns, the provisions of EDCA must be compared
with those of the MDT and the VFA, which are the two treaties from which
EDCA allegedly draws its validity.
"Authorized presence" under the VFA versus "authorized activities"
under EDCA: (1) U.S. personnel and (2) U.S. contractors
The OSG argues250 that EDCA merely details existing policies under the MDT
and the VFA. It explains that EDCA articulates the principle of defensive
preparation embodied in Article II of the MDT; and seeks to enhance the
defensive, strategic, and technological capabilities of both parties pursuant to
the objective of the treaty to strengthen those capabilities to prevent or resist
a possible armed attack. Respondent also points out that EDCA simply
implements Article I of the VFA, which already allows the entry of U.S. troops
and personnel into the country. Respondent stresses this Court's recognition
in Lim v. Executive Secretary that U.S. troops and personnel are authorized
to conduct activities that promote the goal of maintaining and developing
their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA merely
implement the MDT. According to them, the treaty does not specifically
authorize the entry of U.S. troops in the country in order to maintain and
develop the individual and collective capacities of both the Philippines and
the U.S. to resist an armed attack. They emphasize that the treaty was
concluded at a time when there was as yet no specific constitutional
prohibition on the presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the
VFA. They assert that the agreement covers only short-term or temporary
visits of U.S. troops "from time to time" for the specific purpose
of combined military exercises with their Filipino counterparts. They stress
that, in contrast, 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)
By virtue of Articles I and III of the VFA, the Philippines already allows U.S.
military and civilian personnel to be "temporarily in the Philippines," so long
as their presence is "in connection with activities approved by the Philippine
Government." The Philippines, through Article III, even guarantees that it
shall facilitate the admission of U.S. personnel into the country and grant
exemptions from passport and visa regulations. The VFA does not even limit
their temporary presence to specific locations.
Based on the above provisions, the admission and presence
of U.S. military and civilian personnel in Philippine territory are already
allowed under the VFA, the treaty supposedly being implemented by
EDCA. What EDCA has effectively done, in fact, is merely provide the
mechanism to identify the locations in which U.S. personnel may perform
allowed activities pursuant to the VFA. As the implementing agreement, it
regulates and limits the presence of U.S. personnel in the country.
b. EDCA does not provide the legal basis for admission of U.S. contractors
into Philippine territory; their entry must be sourced from extraneous
Philippine statutes and regulations for the admission of alien employees or
business persons.
Of the three aforementioned classes of individuals who will be conducting
certain activities within the Agreed Locations, we note that only U.S.
contractors are not explicitly mentioned in the VFA. This does not mean,
though, that the recognition of their presence under EDCA is ipso facto an
amendment of the treaty, and that there must be Senate concurrence before
they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into
the Philippines. Articles III and IV, in fact, merely grant them the right of
access to, and the authority to conduct certain activities within the Agreed
Locations. Since Article II(3) of EDCA specifically leaves out U.S.
contractors from the coverage of the VFA, they shall not be granted the same
entry accommodations and privileges as those enjoyed by U.S. military and
civilian personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the
Philippines to admit U.S. contractors into the country. 259 We emphasize that
the admission of aliens into Philippine territory is "a matter of pure permission
and simple tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel who are
accorded entry accommodations, U.S. contractors are subject to Philippine
immigration laws.261The latter must comply with our visa and passport
regulations262 and prove that they are not subject to exclusion under any
provision of Philippine immigration laws.263 The President may also deny
them entry pursuant to his absolute and unqualified power to prohibit or
prevent the admission of aliens whose presence in the country would be
inimical to public interest.264
In the same vein, the President may exercise the plenary power to expel or
deport U.S. contractors265 as may be necessitated by national security, public
safety, public health, public morals, and national interest. 266 They may also be
deported if they are found to be illegal or undesirable aliens pursuant to the
Philippine Immigration Act267 and the Data Privacy Act.268 In contrast, Article
111(5) of the VFA requires a request for removal from the Philippine
government before a member of the U.S. personnel may be "dispos[ed] xx x
outside of the Philippines."
c. Authorized activities of U.S. military and civilian personnel within Philippine
territory are in furtherance of the MDT and the VFA
We begin our analysis by quoting the relevant sections of the MDT and the
VFA that pertain to the activities in which U.S. military and civilian personnel
may engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this Treaty, the Parties
separately and jointly byself-help and mutual aid will maintain and
develop their individual and collective capacity to resist armed attack.
Article III
The Parties, through their Foreign Ministers or their deputies,
will consult together from time to time regarding the implementation of
this Treaty and whenever in the opinion of either of them the territorial
integrity, political independence or security of either of the Parties is
threatened by external armed attack in the Pacific.
VISITING FORCES AGREEMENT
Preamble
xxx
Reaffirming their obligations under the Mutual Defense Treaty of August
30, 1951;
Noting that from time to time elements of the United States armed forces
may visit the Republic of the Philippines;
Considering that cooperation between the United States and the Republic of
the Philippines promotes their common security interests;
xxx
Article I - Definitions
As used in this Agreement, "United States personnel" means United States
military and civilian personnel temporarily in the Philippines in connection
with activities approved by the Philippine Government. Within this
definition: xx x
Article II - Respect for Law
It is the duty of United States personnel to respect the laws of the
Republic of the Philippines and to abstain from any activity inconsistent
with the spirit of this agreement, and, in particular, from any political
activity in the Philippines. The Government of the United States shall take all
measures within its authority to ensure that this is done.
Article VII - Importation and Exportation
1. United States Government equipment, materials, supplies, and other
property imported into or acquired in the Philippines by or on behalf of the
United States armed forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties, taxes and other
similar charges. Title to such property shall remain with the United States,
which may remove such property from the Philippines at any time, free from
export duties, taxes, and other similar charges. x x x.
Article VIII - Movement of Vessels and Aircraft
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 interpretation 269 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 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
thereof281
4. Exercise of all rights and authorities within the Agreed Locations that are
necessary for their operational control or defense, including the adoption of
apfropriate measures to protect U.S. forces and contractors 282
5. Use of water, electricity, and other public utilities283
6. Operation of their own telecommunication systems, including the utilization
of such means and services as are required to ensure the full ability to
operate telecommunication systems, as well as the use of the necessary
radio spectrum allocated for this purpose284
According to Article I of EDCA, one of the purposes of these activities is to
maintain and develop, jointly and by mutual aid, the individual and collective
capacities of both countries to resist an armed attack. It further states that the
activities are in furtherance of the MDT and within the context of the VFA.
We note that these planned activities are very similar to those under the
Terms of Reference285 mentioned in Lim. Both EDCA and the Terms of
Reference authorize the U.S. to perform the following: (a) participate in
training exercises; (b) retain command over their forces; (c) establish
temporary structures in the country; (d) share in the use of their respective
resources, equipment and other assets; and (e) exercise their right to self-
defense. We quote the relevant portion of the Terms and Conditions as
follows:286
I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be
established. Temporary structures such as those for troop billeting,
classroom instruction and messing may be set up for use by RP and
US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-
Directors under the authority of the Chief of Staff, AFP. In no instance will US
Forces operate independently during field training exercises (FTX). AFP and
US Unit Commanders will retain command over their respective forces
under the overall authority of the Exercise Co-Directors. RP and US
participants shall comply with operational instructions of the AFP during the
FTX.
The exercise shall be conducted and completed within a period of not more
than six months, with the projected participation of 660 US personnel and
3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-
Directors to wind up and terminate the Exercise and other activities within the
six month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and
training Exercise relative to Philippine efforts against the ASG, and will be
conducted on the Island of Basilan. Further advising, assisting and training
exercises shall be conducted in Malagutay and the Zamboanga area.
Related activities in Cebu will be for support of the Exercise.
xx xx.
US exercise participants shall not engage in combat, without prejudice to
their right of self-defense.
These terms of Reference are for purposes of this Exercise only and do not
create additional legal obligations between the US Government and the
Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military
assisting, advising and trainingof RP and US Forces with
the primary objective of enhancing the operational
capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently
within RP territory.
c. Flight plans of all aircraft involved in the exercise will
comply with the local air traffic regulations.
2. ADMINISTRATION & LOGISTICS
xxxx
a. RP and US participating forces may share, in accordance with their
respective laws and regulations, in the use of their resources, equipment
and other assets. They will use their respective logistics channels. x x
x. (Emphases Supplied)
After a thorough examination of the content, purpose, and framework of the
MDT and the VFA, we find that EDCA has remained within the parameters
set in these two treaties. Just like the Terms of Reference mentioned
in Lim, mere adjustments in detail to implement the MDT and the VFA can be
in the form of executive agreements.
Petitioners assert287 that the duration of the activities mentioned in EDCA is
no longer consistent with the temporary nature of the visits as contemplated
in the VFA. They point out that Article XII(4) of EDCA has an initial term of 10
years, a term automatically renewed unless the Philippines or the U.S.
terminates the agreement. According to petitioners, such length of time
already has a badge of permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro likewise
argues in her Concurring and Dissenting Opinion that the VFA contemplated
mere temporary visits from U.S. forces, whereas EDCA allows an unlimited
period for U.S. forces to stay in the Philippines.288
However, the provisions of EDCA directly contradict this argument by limiting
itself to 10 years of effectivity. Although this term is automatically renewed,
the process for terminating the agreement is unilateral and the right to do so
automatically accrues at the end of the 10 year period. Clearly, this method
does not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been
by chance that the VFA does not include a maximum time limit with respect
to the presence of U.S. personnel in the country. We construe this lack of
specificity as a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the "adjustment in
detail" stage of the implementation of the treaty. We interpret the subsequent,
unconditional concurrence of the Senate in the entire text of the VFA as an
implicit grant to the President of a margin of appreciation in determining the
duration of the "temporary" presence of U.S. personnel in the country.
Justice Brion's dissent argues that the presence of U.S. forces under EDCA
is "more permanent" in nature.289However, this argument has not taken root
by virtue of a simple glance at its provisions on the effectivity period. EDCA
does not grant permanent bases, but rather temporary rotational access to
facilities for efficiency. As Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes rotational
access to facilities of the Armed Forces of the Philippines – but not
permanent bases which are prohibited under the Philippine Constitution -
with the result of reducing response time should an external threat from a
common adversary crystallize.290
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:
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
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. 1946 Treaty of Gen. Relations, Art. I: access and use pursuant to this Agreement.
Such Agreed Locations may be listed in an
b. There are substantial matters that the US. cannot do under EDCA, but United States of America agrees to annex to be appended to this Agreement, and
which it was authorized to do under the 1947 MBA withdraw and surrender, and does hereby may be further described in implementing
withdraw and surrender, all rights of arrangements.
The Philippine experience with U.S. military bases under the 1947 MBA is possession, supervision, jurisdiction, control
simply not possible under EDCA for a number of important reasons. or sovereignty existing and exercised by the EDCA, Art. V:
United States of America in and over the
territory and the people of the Philippine 1. The Philippines shall retain ownership of
First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over
Islands, except the use of such bases, and title to Agreed Locations.
Philippine territory occupied by American bases. In contrast, the U.S. under necessary appurtenances to such bases, and
EDCA does not enjoy any such right over any part of the Philippines in which the rights incident thereto, as the United xxxx
its forces or equipment may be found. Below is a comparative table States of America, by agreement with the
between the old treaty and EDCA: Republic of the Philippines may deem necessary
to retain for the mutual protection of the Republic 4. All buildings, non-relocatable structures,
of the Philippines and of the United States of and assemblies affixed to the land in the
America. x x x. Agreed Locations, including ones altered or
947 MBA/ 1946 Treaty of General Relations EDCA improved by United States forces, remain the
property of the Philippines.Permanent
47 MBA, Art. I(1): EDCA, preamble:
buildings constructed by United States forces
become the property of the Philippines, once
e Government of the Republic of Affirming that the Parties share an understanding constructed, but shall be used by United State
Philippines (hereinafter referred to as the for the United States not to establish a forces until no longer required by United States
ilippines) grants to the Government of permanent military presence or base in the forces.
United States of America (hereinafter territory of the Philippines;
erred to as the United States) the right to
ain the use of the bases in the xxxx
ilippines listed in Annex A attached hereto.
Recognizing that all United States access Second, in the bases agreement, the U.S. and the Philippines were visibly
47 MBA, Art. XVII(2): and use of facilities and areas will be at the not on equal footing when it came to deciding whether to expand or to
invitation of the Philippines and with full increase the number of bases, as the Philippines may be compelled to
buildings and structures which are erected respect for the Philippine Constitution and
negotiate with the U.S. the moment the latter requested an expansion of
the United States in the bases shall be Philippine laws;
property of the United States and may be the existing bases or to acquire additional bases. In EDCA, U.S. access is
moved by it before the expiration of this xxxx purely at the invitation of the Philippines.
reement or the earlier relinquishment of the
se on which the structures are situated. There EDCA, Art. II(4):
all be no obligation on the part of the 1947 MBA/ 1946 Treaty of General Relations EDCA
ilippines or of the United States to rebuild or
"Agreed Locations" means facilities 1947and
MBA, Art.I(3): EDCA, preamble:
air any destruction or damage inflicted from
y cause whatsoever on any of the said areas that are provided by the Government of
ldings or structures owned or used by the the Philippines through the AFP and that United agree to enter into
Philippines Recognizing that all United States access to
ited States in the bases. x x x x. States forces, United States contractors, and
negotiations with the United States at the and use of facilities and areas will be at the
others as mutually agreed, shall have the right
latter's to to permit the United States to
request, invitation of the Philippines and with full
 procedures developed by the Parties.
pand such bases, to exchange such bases respect for the Philippine Constitution and
other bases, to acquire additional bases, or Philippine laws;
nquish rights to bases, as any of such Fourth, in the bases agreement, the U.S. retained the right, power, and
gencies may be required by military necessity. xxxx authority over the establishment, use, operation, defense, and control of
military bases, including the limits of territorial waters and air space
46 Treaty of Gen. Relations, Art. I: EDCA. Art. II(4): adjacent to or in the vicinity of those bases. The only standard used in
determining the extent of its control was military necessity. On the other
e United States of America agrees to "Agreed Locations" means facilities and hand, there is no such grant of power or authority under EDCA. It merely
hdraw and surrender, and does hereby areas that are provided by the Government allows
of the U.S. to exercise operational control over the construction of
hdraw and surrender, all rights of the Philippines through the AFP and that United
Philippine-owned structures and facilities:
ssession, supervision, jurisdiction, control States forces, United States contractors, and
sovereignty existing and exercised by the others as mutually agreed, shall have the right
ited States of America in and over the to access and use pursuant to this Agreement. 1947 MBA EDCA
ritory and the people of the Philippine Such Agreed Locations may be listed in an
ands, except the use of such annex to be appended to this Agreement, and Art.I(2):
1947 MBA, EDCA, Art. III(4):
ses, necessary appurtenances to such bases, may be further described in implementing
d the rights incident thereto, as the United arrangements. The Philippines hereby grants to the United
The Philippines agrees to permit the United
ates of America, by agreement with the States, through bilateral security
States, upon notice to the Philippines, to use
public of the Philippines may deem mechanisms, such as the MDB and
such of those bases listed in Annex B as the
cessary to retain for the mutual protection of SEB, operational control of Agreed
United States determines to be required by
Republic of the Philippines and of the United Locations for construction
military necessity.
ates of America. x x x. activities and authority to undertake such
activities on, and make alterations and
1947 MBA, Art. III(1): improvements to, Agreed Locations. United
Third, in EDCA, the Philippines is- guaranteed access over the entire area of States forces shall consult on issues
the Agreed Locations. On the other hand, given that the U.S. had completeIt is mutually agreed that the United Statesshall regarding such construction, alterations, an
control over its military bases under the 1947 MBA, the treaty did not have the rights, power and authority within improvements based on the Parties' shared
the bases which are necessary for the intent that the technical requirements and
provide for any express recognition of the right of access of Philippine establishment, use, operation and defense construction standards of any such projects
authorities. Without that provision and in light of the retention of U.S. thereof or appropriate for the control
undertaken by or on behalf of United States
sovereignty over the old military bases, the U.S. could effectively prevent thereof and all the rights, power and forces should be consistent with the
Philippine authorities from entering those bases. authority within the limits of territorial waters requirements and standards of both Parties.
and air space adjacent to, or in the vicinity of,
the bases which are necessary to provide
1947 MBA EDCA access to them, or appropriate for their control.

equivalent provision. EDCA, Art. III(5):

Fifth, the U.S. under the bases agreement was given the authority to use
The Philippine Designated Authority and itsPhilippine territory for additional staging areas, bombing and gunnery
authorized representative shall have access
to the entire area of the Agreed Locations
ranges. No such right is given under EDCA, as seen below:
Such access shall be provided promptly
consistent with operational safety and security 1947 MBA EDCA
requirements in accordance with agreed
 Seventh, under EDCA, the U.S. is merely given temporary access to land and
47 MBA, Art. VI: EDCA, Art. III(1):
facilities (including roads, ports, and airfields). On the other hand, the old
e United States shall, subject to previous With consideration of the views of the Parties treaty gave the U.S. the right to improve and deepen the harbors, channels,
reement with the Philippines, have the right to the Philippines hereby authorizes and agrees entrances, and anchorages; and to construct or maintain necessary roads
e land and coastal sea areas of appropriate that United States forces, United States and bridges that would afford it access to its military bases.
e and location for periodic maneuvers, for contractors, and vehicles, vessels, and aircraft
ditional staging areas, bombing and operated by or for United States forces may
nnery ranges, and for such intermediate conduct the following activities with respect to 1947 MBA EDCA
fields as may be required for safe and Agreed Locations: training; transit; support and
cient air operations. Operations in such areas related activities; refueling of aircraft;
1947bunkering
MBA, Art. III(2)(b): EDCA, Art. III(2):
all be carried on with due regard and of vessels; temporary maintenance of vehicles,
eguards for the public safety. Such rights, power and authority shall
vessels, and aircraft; temporary accommodation When requested, the Designated Authority of t
include, inter
of personnel; communications; prepositioning of alia, the right, power and Philippines shall assist in facilitating transit o
equipment, supplies, and materiel; authority:
deploying x x x x to improve and deepen the temporary access by United States forces to
47 MBA, Art.I(2): forces and materiel; and such otherharbors,
activitieschannels,
as entrances and public land and facilities (including roads, ports
the Parties may agree. anchorages, and to construct or maintain and airfields), including those owned or
e Philippines agrees to permit the United necessary roadsand bridges affording access controlled by local governments, and to other
ates, upon notice to the Philippines, to use to the bases. land and facilities (including roads, ports, and
ch of those bases listed in Annex B as the airfields).
ited States determines to be required by
itary necessity.
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,
Sixth, under the MBA, the U.S. was given the right, power, and authority to
roads, highways, railroads, bridges, viaducts, canals, lakes, rivers, and
control and prohibit the movement and operation of all types of vehicles
streams in the Philippines in the same manner that Philippine military forces
within the vicinity of the bases. The U.S. does not have any right, power, or
enjoyed that right. No such arrangement appears in EDCA. In fact, it merely
authority to do so under EDCA.
extends to U.S. forces temporary access to public land and facilities when
requested:
1947 MBA EDCA

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

ch rights, power and authority shall 1947 MBA, Art. VII: EDCA, Art. III(2):
lude, inter alia, the right, power and
thority: x x x x to control (including the It is mutually agreed that the United States may When requested, the Designated Authority of
ht to prohibit) in so far as may be required for employ and use for United States military the Philippines shall assist in facilitating trans
efficient operation and safety of the bases, forces any and all public utilities, other or temporary access by United States forces
d within the limits of military services and facilities, airfields, ports, harbors, public land and facilities (including roads, ports
cessity, anchorages, moorings, landings, roads, highways, railroads, bridges, viaducts, and airfields), including those owned or
eoffs, movements and operation of ships canals, lakes, rivers and streams in the controlled by local governments, and to other
d water-borne craft, aircraft and other Philippines under conditions no less favorable land and facilities (including roads, ports, and
hicles on water, in the air or on land than those that may be applicablefrom time to airfields).
mprising time to the military forces of the Philippines.
 Ninth, under EDCA, the U.S. no longer has the right, power, and authority to
Philippines will institute and prosecute such
construct, install, maintain, and employ any type of facility, weapon,
condemnation or expropriation proceedings in
substance, device, vessel or vehicle, or system unlike in the old treaty. EDCA
accordance with the laws of the Philippines. The
merely grants the U.S., through bilateral security mechanisms, the authority United States agrees to reimburse the
to undertake construction, alteration, or improvements on the Philippine-Philippines for all the reasonable expenses,
owned Agreed Locations. damages and costs therebv incurred, including
the value of the property as determined by the
Court. In addition, subject to the mutual
1947 MBA EDCA agreement of the two Governments, the United
States will reimburse the Philippines for the
47 MBA, Art. III(2)(e): EDCA, Art. III(4): reasonable costs of transportation and removal
of any occupants displaced or ejected by reason
ch rights, power and authority shall The Philippines hereby grants to theof United
the condemnation or expropriation.
lude, inter alia, the right, power and States, through bilateral security
thority: x x x x to construct, install, mechanisms, such as the MDB and SEB,
intain, and employ on any base any operational control of Agreed Locations for Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country
pe of facilities, weapons, substance, device, construction activities and authority to non-Philippine nationals who are under its employ, together with their
ssel or vehicle on or under the ground, in the undertake such activities on, and make families, in connection with the construction, maintenance, or operation of
or on or under the water that may be requisite alterations and improvements to, Agreed
appropriate, including meteorological systems, Locations. United States forces shall consult on the bases. EDCA strictly adheres to the limits under the VFA.
rial and water navigation lights, radio and issues regarding such construction, alterations,
ar apparatus and electronic devices, of any and improvements based on the Parties' shared
1947 MBA EDCA
sired power, type of emission and frequency. intent that the technical requirements and
construction standards of any such1947projects
MBA, Art. XI(l): EDCA, Art. II:
undertaken by or on behalf of United States
forces should be consistent with theIt is mutually agreed that the United States
requirements and standards of bothshallParties. 1. "United States personnel" means United
have the right to bring into the States military and civilian
Philippines members of the United States personneltemporarily in the territory of the
military forces and the United States nationals Philippines in connection with activities approv
Tenth, EDCA does not allow the U.S. to acquire, by condemnation or employed by or under a contract with the by the Philippines, as those terms are define
expropriation proceedings, real property belonging to any private person. United States together with their families, and
in the VFA.
The old military bases agreement gave this right to the U.S. as seen below:technical personnel of other nationalities (not
being persons excluded by the laws of the
x xx x
Philippines) in connection with the construction,
1947 MBA EDCA maintenance, or operation of the bases. The
United States shall make suitable arrangements 3. "United States contractors" means
47 MBA, Art. XXII(l): No equivalent provision. so that such persons may be readily identified companies and firms, and their employees,
and their status established when necessary by under contract or subcontract to or on behalf o
henever it is necessary to acquire by the Philippine authorities. Such persons, other the United States Department of Defense. Unit
than members of the United States armed forces States contractors are not includedas part of
in uniform, shall present their travel documents the definition of United States personnel in
ndemnation or expropriation proceedings
al property belonging to any private to the appropriate Philippine authorities for visas, this Agreement, including within the context
it being understood that no objection will be the VFA.
rsons, associations or corporations located in
ses named in Annex A and Annex B in order to made to their travel to the Philippines as non-
ry out the purposes of this Agreement, the immigrants.
 Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any
shall be taken by the appropriate authorities of
offense committed by any person within the Agreed Locations, unlike in the
the United States to prevent the resale of goods
former military bases: 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
1947 MBA EDCA privileges granted under this Article. There shall
be cooperation between such authorities and the
47 MBA, Art. XIII(l)(a): No equivalent provision. Philippines to this end.

e Philippines consents that the United

In sum, EDCA is a far cry from a basing agreement as was understood by
ates shall have the right to exercise the people at the time that the 1987 Constitution was adopted.
isdiction over the following offenses: (a) Any
ense committed by any person within any Nevertheless, a comprehensive review of what the Constitution means by
se except where the offender and offended "foreign military bases" and "facilities" is required before EDCA can be
rties are both Philippine citizens (not members deemed to have passed judicial scrutiny.
he armed forces of the United States on
ive duty) or the offense is against the security c. The meaning of military facilities and bases
he Philippines.
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
Thirteenth, EDCA does not allow the U.S. to operate military post exchange
constitutional restriction.
(PX) facilities, which is free of customs duties and taxes, unlike what the
expired MBA expressly allowed. Parenthetically, the PX store has become Prior to the drafting of the 1987 Constitution, the last definition of "military
the cultural icon of U.S. military presence in the country. 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
1947 MBA EDCA trespass.
47 MBA, Art. XVIII(l): No equivalent provision.
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,
s mutually agreed that the United States base, fort, camp, arsenal, yard, station, or installation in the Philippines."

all have the right to establish on bases, free Commissioner Tadeo, in presenting his objections to U.S. presence in the
all licenses; fees; sales, excise or other Philippines before the 1986 Constitutional Commission, listed the areas that
es, or imposts; Government he considered as military bases:
encies, including concessions, such
sales commissaries and post
changes; messes and social clubs, for the 1,000 hectares Camp O'Donnel
clusive use of the United States military
ces and authorized civilian personnel and 20,000 hectares Crow Valley Weapon's Range
eir families. The merchandise or services sold
dispensed by such agencies shall be free of 55,000 hectares Clark Air Base
taxes, duties and inspection by the
ilippine authorities. Administrative measures 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."
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 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
340
SPEECH OF COMMISSIONER BENNAGEN
xxxx
The underlying principle of military bases and nuclear weapons wherever
they are found and whoever owns them is that those are for killing people
or for terrorizing humanity. This objective by itself at any point in history is
morally repugnant. This alone is reason enough for us to constitutionalize the
ban on foreign military bases and on nuclear weapons.341
SPEECH OF COMMISSIONER BACANI342
xxxx
x x x Hence, the remedy to prostitution does not seem to be primarily to
remove the bases because even if the bases are removed, the girls mired in
poverty will look for their clientele elsewhere. The remedy to the problem of
prostitution lies primarily elsewhere - in an alert and concerned citizenry, a
healthy economy and a sound education in values.343
SPEECH OF COMMISSIONER JAMIR344
xxxx
One of the reasons advanced against the maintenance of foreign
military bases here is that they impair portions of our sovereignty. While
I agree that our country's sovereignty should not be impaired, I also hold the
view that there are times when it is necessary to do so according to the
imperatives of national interest. There are precedents to this effect. Thus,
during World War II, England leased its bases in the West Indies and in
Bermuda for 99 years to the United States for its use as naval and air bases.
It was done in consideration of 50 overaged destroyers which the United
States gave to England for its use in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United
States for the latter's use as a naval base in the Indian Ocean. About the
same time, the United States obtained bases in Spain, Egypt and Israel. In
doing so, these countries, in effect, contributed to the launching of a
preventive defense posture against possible trouble in the Middle East and in
the Indian Ocean for their own protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations, the
presence of American troops in the country is a projection of America's
security interest. Enrile said that nonetheless, they also serve, although in an
incidental and secondary way, the security interest of the Republic of the
Philippines and the region. Yes, of course, Mr. Enrile also echoes the
sentiments of most of us in this Commission, namely: It is ideal for us as an
independent and sovereign nation to ultimately abrogate the RP-US
military treaty and, at the right time, build our own air and naval
might.347
xxxx
Allow me to say in summation that I am for the retention of American
military bases in the Philippines provided that such an extension from
one period to another shall be concluded upon concurrence of the
parties, and such extension shall be based on justice, the historical
amity of the people of the Philippines and the United States and their
common defense interest.348
SPEECH OF COMMISSIONER ALONTO349
 xxxx
Madam President, sometime ago after this Commission started with this task
of framing a constitution, I read a statement of President Aquino to the effect
that she is for the removal of the U.S. military bases in this country but that
the removal of the U.S. military bases should not be done just to give way to
other foreign bases. Today, there are two world superpowers, both vying to
control any and all countries which have importance to their strategy for
world domination. The Philippines is one such country.
Madam President, I submit that I am one of those ready to completely
remove any vestiges of the days of enslavement, but not prepared to
erase them if to do so would merely leave a vacuum to be occupied by a far
worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our
brethren in the Middle East, in Indo-China, Central America, in South Africa -
there has been escalation of war in some of these areas because of foreign
intervention which views these conflicts through the narrow prism of the East-
West conflict. The United States bases have been used as springboards
for intervention in some of these conflicts. We should not allow
ourselves to be party to the warlike mentality of these foreign
interventionists. We must always be on the side of peace – this means that
we should not always rely on military solution.352
xxxx
x x x The United States bases, therefore, are springboards for intervention
in our own internal affairs and in the affairs of other nations in this
region.
xxxx
Thus, I firmly believe that a self-respecting nation should safeguard its
fundamental freedoms which should logically be declared in black and white
in our fundamental law of the land - the Constitution. Let us express our
desire for national sovereignty so we may be able to achieve national
self-determination. Let us express our desire for neutrality so that we may
be able to follow active nonaligned independent foreign policies. Let us
express our desire for peace and a nuclear-free zone so we may be able to
pursue a healthy and tranquil existence, to have peace that is autonomous
and not imposed. 353
xxxx
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ha ang kahulugan ng U.S. military
bases? Para sa magbubukid, ang kahulugan nito ay pagkaalipin. Para sa
magbubukid, ang pananatili ng U.S. military bases ay tinik sa dibdib ng
sambayanang Pilipinong patuloy na nakabaon. Para sa sambayanang
magbubukid, ang ibig sabihin ng U.S. military bases ay batong pabigat na
patuloy na pinapasan ng sambayanang Pilipino. Para sa sambayanang
magbubukid, ang pananatili ng U.S. military bases ay isang nagdudumilat
na katotohanan ng patuloy na paggahasa ng imperyalistang Estados
Unidos sa ating Inang Bayan - economically, politically and
culturally. Para sa sambayanang magbubukid ang U.S. military
bases ay kasingkahulugan ng nuclear weapon - ang kahulugan ay
magneto ng isang nuclear war. Para sa sambayanang magbubukid, ang
kahulugan ng U.S. military bases ay isang salot.355
SPEECH OF COMMISSIONER QUESADA356
xxxx
The drift in the voting on issues related to freeing ourselves from the
instruments of domination 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)
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 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.
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."
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 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 targets428 and protected targets.429 In an actual
armed conflict between the U.S. and a third state, the Agreed Locations
cannot be considered U.S. territory, since ownership of territory even in times
of armed conflict does not change.430
Hence, any armed attack by forces of a third state against an Agreed
Location can only be legitimate under international humanitarian law if it is
against a bona fide U.S. military base, facility, or installation that directly
contributes to the military effort of the U.S. Moreover, the third state's forces
must take all measures to ensure that they have complied with the principle
of distinction (between combatants and non-combatants).
There is, then, ample legal protection for the Philippines under international
law that would ensure its territorial integrity and national security in the event
an Agreed Location is subjected to attack. As EDCA stands, it does not
create the situation so feared by petitioners - one in which the Philippines,
while not participating in an armed conflict, would be legitimately targeted by
an enemy of the U.S.431
In the second place, this is a policy question about the wisdom of allowing
the presence of U.S. personnel within our territory and is therefore outside
the scope of judicial review.
Evidently, the concept of giving foreign troops access to "agreed" locations,
areas, or facilities within the military base of another sovereign state is
nothing new on the international plane. In fact, this arrangement has been
used as the framework for several defense cooperation agreements, such as
in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement 432
2. 2009 U.S.-Colombia Defense Cooperation Agreement 433
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.
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 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. 213948
KNIGHTS OF RIZAL, Petitioner.
vs.
DMCI HOMES, INC., DMCI PROJECT DEVELOPERS, INC., CITY OF
MANILA, NATIONAL COMMISSION FOR CULTURE AND THE ARTS,
NATIONAL HISTORICAL COMMISSION OF THE
PHILIPPINES, Respondents.
DECISION
CARPIO, J.:
Bury me in the ground, place a stone and a cross over it.
My name, the date of my birth, and of my death. Nothing more.
If you later wish to surround my grave with a fence, you may do so.
No anniversaries. I prefer Paang Bundok.
- Jose Rizal
The Case
Before this Court is a Petition for Injunction, with Applications for Temporary
Restraining Order, Writ of Preliminary Injunction, and Others 1 filed by the
Knights of Rizal (KOR) seeking, among others, for an order to stop the
construction of respondent DMCI Homes, Inc. 's condominium development
project known as the Torre de Manila. In its Resolution dated 25 November
2014, the Court resolved to treat the petition as one for mandamus. 2
The Facts
On 1 September 2011, DMCI Project Developers, Inc. (DMCI-PDI) 3 acquired
a 7,716.60-square meter lot in the City of Manila, located near Taft Avenue,
Ermita, beside the former Manila Jai-Alai Building and Adamson
University.4The lot was earmarked for the construction of DMCI-PDI's Torre
de Manila condominium project.
On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the
construction of its project. It then obtained a Zoning Permit from the City of
Manila's City Planning and Development Office (CPDO) on 19 June 2012. 5
Then, on 5 July 2012, the City of Manila's Office of the Building Official
granted DMCI-PDI a Building Permit, allowing it to build a "Forty Nine (49)
Storey w/ Basement & 2 penthouse Level Res'l./Condominium" on the
property. 6
On 24 July 2012, the City Council of Manila issued Resolution No. 121
enjoining the Office of the Building Official to temporarily suspend the
Building Permit of DMCI-PDI, citing among others, that "the Torre de Manila
Condominium, based on their development plans, upon completion, will rise
up high above the back of the national monument, to clearly dwarf the statue
of our hero, and with such towering heights, would certainly ruin the line of
sight of the Rizal Shrine from the frontal Roxas Boulevard vantage point[.]" 7
Building Official Melvin Q. Balagot then sought the opinion of the City of
Manila's City Legal Officer on whether he is bound to comply with Resolution
No. 121.8 In his letter dated 12 September 2012, City Legal Officer Renato G.
Dela Cruz stated that there is "no legal justification for the temporary
suspension of the Building Permit issued in favor of [DMCI-PDI]" since the
construction "lies outside the Luneta Park" and is "simply too far to I be a
repulsive distraction or have an objectionable effect on the artistic and
historical significance" of the Rizal Monument. 9 He also pointed out that
"there is no showing that the [area of subject property has been officially
declared as an anthropological or archeological area. Neither has it ' been
categorically designated by the National Historical Institute as a heritage
zone, a cultural property, a historical landmark or even a national treasure."
Subsequently, both the City of Manila and DMCI-PDI sought the opinion or
the National Historical Commission of the Philippines (NHCP) on the matter.
In the letter10 dated 6 November 2012 from NHCP I Chairperson Dr. Maria
Serena I. Diokno addressed to DMCI-PDI and the letter 11 dated 7 November
2012 from NHCP Executive Director III Ludovico D. Bado)f addressed to then
Manila Mayor Alfredo S. Lim, the NHCP maintained that the Torre de Manila
project site is outside the boundaries of the Rizal f.ark and well to the rear of
the Rizal Monument, and thus, cannot possibly obstruct the frontal view of
the National Monument.
On 26 November 2013, following an online petition against the Torre de
Manila project that garnered about 7,800 signatures, the City Council of
Manila issued Resolution No. 146, reiterating its directive in Resolution No.
121 1 enjoining the City of Manila's building officials to temporarily suspend
~MCI-PDI's Building Permit. 12
In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, DMCI-
PIDI President Alfredo R. Austria sought clarification on the controversy
surrounding its Zoning Permit. He stated that since the CPDO granted its
Zoning Permit, DMCI-PDI continued with the application for the Building
Permit, which was granted, and did not deem it necessary to go through the
process of appealing to the local zoning board. He then expressed DMCI-
PDI's willingness to comply with the process if the City of Manila deemed it
necessary. 13
On 23 December 2013, the Manila Zoning Board of Adjustments and Appeals
(MZBAA) issued Zoning Board Resolution No. 06, Series of
2013, 14 recommending the approval of DMCI-PDI's application for
variance. ;The MZBAA noted that the Torre de Manila project "exceeds the
prescribed maximum Percentage of Land Occupancy (PLO) and exceeds the
prescribeµ Floor Area Ratio (FAR) as stipulated in Article V, Section 17 of
City Ordinance No. 8119[.]" However, the MZBAA still recommended the
approval of the variance subject to the five conditions set under the same
resolution.
After some clarification sought by DMCI-PDI, the MZBAA issued Zoning
Board Resolution No. 06-A, Series of 2013, 15 on 8 January 2014, amending
condition (c) in the earlier resolution. 16
On 16 January 2014, the City Council of Manila issued Resolution No. 5,
Series of 2014, 17 adopting Zoning Board Resolution Nos. 06 and 06- A. The
City Council resolution states that "the City Council of Manila find[ s] no
cogent reason to deny and/or reverse the aforesaid recommendation of the
[MZBAA] and hereby ratif[ies] and confirm[s] all previously issued permits,
licenses and approvals issued by the City [Council] of Manila for Torre de
Manila[.]"
Arguments of the KOR
On 12 September 2014, the KOR, a "civic, patriotic, cultural, nonpartisan,
non-sectarian and non-profit organization" 18 created under Republic Act No.
646, 19 filed a Petition for Injunction seeking a temporary restraining I order,
and later a permanent injunction, against the construction of DMCIPDI's
Torre de Manila condominium project. The KOR argues that the subject
matter of the present suit is one of "transcendental importance, paramount
public interest, of overarching significance to society, or with far-reaching
implication" involving the desecration of the Rizal Monument.
The KOR asserts that the completed Torre de Manila structure will "[stick] out
like a sore thumb, [dwarf] all surrounding buildings within a radius of two
kilometer/s" and "forever ruin the sightline of the Rizal Monument in Luneta
Park: Torre de Manila building would loom at the back I and overshadow the
entire monument, whether up close or viewed from a distance. '' 20
Further, the KOR argues that the Rizal Monument, as a National Treasure, is
entitled to "full protection of the law"21and the national government must
abate the act or activity that endangers the nation's cultural heritage "even
against the wishes of the local government hosting it." 22
Next, the KOR contends that the project is a nuisance per se23 because "[t]he
despoliation of the sight view of the Rizal Monument is a situation that
annoy's or offends the senses' of every Filipino who honors the memory of
the National Hero Jose Rizal. It is a present, continuing, worsening and
aggravating status or condition. Hence, the PROJECT is a nuisance per se.
It deserves I to be abated summarily, even without need of judicial
proceeding. "24
The KOR also claims that the Torre de Manila project violates the
NHCP's Guidelines on Monuments Honoring National Heroes, Illustrious
Filipinos and Other Personages, which state that historic monuments should
assert a visual "dominance" over its surroundings,25 as well as the country's
commitment under the International Charter for the Conservation and
Restoration of Monuments and Sites, otherwise known as the Venice
Charter. 26
Lastly, the KOR claims that the DMCI-PDI's construction was commenced
and continues in bad faith, and is in violation of the City of Manila's zoning
ordinance. 27
Arguments of DMCI-PDI
In its Comment, DMCI-PDI argues that the KOR's petition should be
dismissed on the following grounds:
I.
THXS HONORABLE COURT HAS NO JURISDICTION OVER THIS
ACTION.
II.
KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR PR0SECUTE
THIS ACTION.
III.
TORRE DE MANILA IS NOT A NUISANCE PER SE.
IV.
DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING TORRE DE
MANILA; AND
V.
KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORPER
AND/OR A WRIT OF PRELIMINARY INJUNCTION. 28
First, DMCI-PDI asserts that the Court has no original jurisdiction over
actions for injunction.29 Even assuming that the Court has concurrent
jurisdiction, DMCI-PDI maintains that the petition should still have been filed
with the Regional Trial Court under the doctrine of hierarchy of courts and
because the petition involves questions of fact. 30
DMCI-PDI also contends that the KOR's petition is in actuality an opposition'
or appeal from the exemption granted by the City of Manila's MZBAA, a
matter which is also not within the jurisdiction of the Court. 31 DMCI-PDI
claims that the proper forum should be the MZBAA, and should the KOR fail
there, it should appeal the same to the Housing and Land Use Regulatory
Board (HLURB). 32
DMCI-PDI further argues that since the Rizal Monument has been declared a
National Treasure, the power to issue a cease and desist order is lodged with
the "appropriate cultural agency" under Section 25 of Republic Act No. li0066
or the National Cultural Heritage Act of 2009. 33 Moreover, DMCI-PDI asserts
that the KOR availed of the wrong remedy since an action for injunction is not
the proper remedy for abatement of a nuisance. 34
Second, DMCI-PDI maintains that the KOR has no standing to institute this
proceeding because it is not a real party in interest in this case. The
purposes of the KOR as a public corporation do not include the preservation
of the Rizal Monument as a cultural or historical heritage site. 35 The KOR has
also not shown that it suffered an actual or threatened injury as a result of the
alleged illegal conduct of the City of Manila. If there is any injury to the KOR
at all, the same was caused by the private conduct of a private entity and not
the City of Manila. 36
Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per se.
DMCI-PDI reiterates that it obtained all the necessary permits, licenses,
clearances, and certificates for its construction. 37 It also refutes the KOR's
claim that the Torre de Manila would dwarf all other structures around it;
considering that there are other tall buildings even closer to the Rizal
Monument itself, namely, the Eton Baypark Tower at the corner of Roxas
Boulevard and T.M. Kalaw Street (29 storeys; 235 meters from the Rizal
Monument) and Sunview Palace at the corner of M.H. Del Pilar and T.M.
Kalaw Streets (42 storeys; 250 meters from the Rizal Monument). 38
Fourth, DMCI-PDI next argues that it did not act in bad faith when it started
construction of its Torre de Manila project. Bad faith cannot be attributed to it
since it was within the "lawful exercise of [its] rights." 39 The KOR failed to
present any proof that DMCI-PDI did not follow the proper procedure and
zoning restrictions of the City of Manila. Aside from obtaining all the
necessary permits from the appropriate government agencies, 40 DMCI-PDI
also sought clarification on its right to build on its site from the Office of the
City Legal Officer of Manila, the Manila CPDO, and the NHCP. 41 Moreover,
even if the KOR proffered such proof, the Court would be 1 in no position to
declare DMCI-PDI's acts as illegal since the Court is not a trier of facts. 42
Finally, DMCI-PDI opposes the KOR's application for a Temporary
Restraining Order (TRO) and writ of preliminary injunction. DMCI-PDI asserts
that the KOR has failed to establish "a clear and unmistakable right to enjoin
I the construction of Torre de Manila, much less request its
demolitior."43 DMCI-PDI further argues that it "has complied with all the legal
requirements for the construction of Torre de Manila x x x [and] has violated o
right of KOR that must be protected. Further, KOR stands to suffer o damage
because of its lack of direct pecuniary interest in this petiti1 on. To grant the
KOR's application for injunctive relief would constitute an unjust taking of
property without due process of law. "44
Arguments of the City of Manila
In its Comment, the City of Manila argues that the writ of mandamus cannot
issue "considering that no property or substantive rights whatsoever in favor
of [the KOR] is being affected or x x x entitled to judicial protection[.]" 45
The City of Manila also asserts that the "issuance and revocation of a
Building Permit undoubtedly fall under the category of a discretionary act or
duty performed by the proper officer in light of his meticulous appraisal and
evaluation of the pertinent supporting documents of the application in
accordance with the rules laid out under the National Building Code [and]
Presidential Decree No. 1096,"46 while the remedy of mandamus is available
only to compel the performance of a ministerial duty. 47
Further, the City of Manila maintains that the construction of the Torre de
Manila did not violate any existing law, since the "edifice [is] well behind
(some 789 meters away) the line of sight of the Rizal Monument." 48 It adds
that the City of Manila's "prevailing Land Use and Zoning Ordinance
[Ordinance No. 8119] x xx allows an adjustment in Floor Area Ratios thru the
[MZBAA] subject to further final approval of the City Council." 49 The City
Council adopted the MZBAA's favorable: recommendation in its Resolution
No. 5, ratifying all the licenses and permits issued to DMCI-PDI for its Torre
de Manila project.
In its Position Paper dated 15 July 2015, the City of Manila admitted that the
Zoning Permit issued to DMCI-PDI was "in breach of certain provisions of
City Ordinance No. 8119."50 It maintained, however, 1 that the deficiency is
"procedural in nature and pertains mostly td the failure of [DMCI-PDI] to
comply with the stipulations that allow an excess in the [FAR]
provisions." 51 Further, the City of Manila argued that the MZBAA, when it
recommended the allowance of the project's variance, imposed certain
conditions upon the Torre de Manila project in order to mitigate the possible
adverse effects of an excess FAR. 52
The Issue
The issues raised by the parties can be summed up into one main point: Can
the Court issue a writ of mandamus against the officials of the City of Manila
to stop the construction of DMCI-PDI's Torre de Manila project?
The Court's Ruling
The petition for mandamus lacks merit and must be dismissed.
There is no law prohibiting the construction of the Torre de Manila.
In Manila Electric Company v. Public Service Commission,53 the Court held
that "what is not expressly or impliedly prohibited by law may be done,
except when the act is contrary to morals, customs and I public
order." This principle is fundamental in a democratic society, to protect the
weak against the strong, the minority against the majority, and the individual
citizen against the government. In essence, this principle, which is the
foundation of a civilized society under the rule of law, prescribes that the
freedom to act can be curtailed only through law. Without this principle, the
rights, freedoms, and civil liberties of citizens can be arbitrarily and
whimsically trampled upon by the shifting passions of those who can spout
the loudest, or those who can gather the biggest crowd or the most number
of Internet trolls. In other instances,54 the Court has allowed or upheld actions
that were not expressly prohibited by statutes when it determined that these
acts were not contrary to morals, customs, and public order, or that upholding
the same would lead to a more equitable solution to the controversy.
However, it is the law itself - Articles 130655 and 1409(1)56 of the Civil Code -
which prescribes that acts not contrary to morals, good customs, public
order, or public policy are allowed if also not contrary to law.
In this case, there is no allegation or proof that the Torre de Manila project is
"contrary to morals, customs, and public order" or that it brings harm, danger,
or hazard to the community. On the contrary, the City of Manila has
determined that DMCI-PDI complied with the standards set under the
pertinent laws and local ordinances to construct its Torre de Manila project.
There is one fact that is crystal clear in this case. There is no law prohibiting
the construction of the Torre de Manila due to its effect on
the background "view, vista, sightline, or setting" of the Rizal Monument.
Specifically, Section 47 reads:
SEC. 47. Historical Preservation and Conservation Standards. - Historic site
and facilities shall be conserved and preserved. These shall, to the extent
possible, be made accessible for the educational and cultural enrichment of
the general public.
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to conserve and
enhance their heritage values.
2. Historic sites and facilities shall be adaptively re-used.
3. Any person who proposes to add, to alter, or partially demolish a
designated heritage property will require the approval of the City Planning
and Development Office (CPDO) and shall be required to prepare a heritage
impact statement that will demonstrate to the satisfaction of CPDO that the
proposal will not adversely impact the heritage significance of the property
and shall submit plans for review by the CPDO in coordination with the
National Historical Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage properties
shall be evaluated based on criteria established by the heritage significance
of the particular property or site.
5. Where an owner of a heritage property applies for approval to demolish a
designated heritage property or properties, the owner shall be required to
provide evidence to satisfaction that demonstrates that rehabilitation and re-
use of the property is not viable.
6. Any designated heritage property which is to be demolished or significantly
altered shall be thoroughly documented for archival purposes with! a history,
photographic records, and measured drawings, in accordance with accepted
heritage recording guidelines, prior to demolition or alteration.
7. Residential and commercial infill in heritage areas will be sensitive to the
existing scale and pattern of those areas, which maintains the existing
landscape and streetscape qualities of those areas, and which does not
result in the loss of any heritage resources.
8. Development plans shall ensure that parking facilities (surface lots
residential garages, stand-alone parking garages and parking components
as parts of larger developments) are compatibly integrated into heritage
areas, and/or are compatible with adjacent heritage resources.
9. Local utility companies (hydro, gas, telephone, cable) shall be required to
place metering equipment, transformer boxes, power lines, conduit,
equipment boxes, piping, wireless telecommunication towers and other utility
equipment and devices in locations which do not detract from the visual
character of heritage resources, and which do not have a negative impact on
its architectural integrity.
10. Design review approval shall be secured from the CPDO for any
alteration of the heritage property to ensure that design guidelines and
standards are met and shall promote preservation and conservation of the
heritage property. (Emphasis supplied)
It is clear that the standards laid down in Section 47 of Ordinance No. 8119
only serve as guides, as it expressly states that "the following shall guide
the :development of historic sites and facilities." A guide simply sets a
direction 'or gives an instruction to be followed by prope1iy owners and
developers in order to conserve and enhance a property's heritage values.
On the other hand, Section 48 states:
SEC. 48. Site Performance Standards. - The City considers it in the public
interest that all projects are designed and developed in a safe, efficient and
aesthetically pleasing manner. Site development shall consider the
environmental character and limitations of the site and its adjacent
properties. All project elements shall be in complete harmony according to
good design principles and the subsequent development must be visually
pleasing as well as efficiently functioning especially in relation to the adjacent
properties and bordering streets.
The design, construction, operation and maintenance of every facility shall be
in harmony with the existing and intended character of its neighborhood. It
shall not change the essential character of the said area but will be a
substantial improvement to the value of the properties in the neighborhood in
particular and the community in general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with1
regard to safety, efficiency and high standards of design. The natural
environmental character of the site and its adjacent properties shall be
considered in the site development of each building and facility.
2. The height and bulk of buildings and structures shall be so designed that it
does not impair the entry of light and ventilation, cause the loss I of privacy
and/or create nuisances, hazards or inconveniences to adjacent
developments.
3. Abutments to adjacent properties shall not be allowed without the
neighbor's prior written consent which shall be required by the City Planning
and Development Office (CPDO) prior to the granting of a Zoning Permit
(Locational Clearance).
4. The capacity of parking areas/lots shall be per the minimum requirements
of the National Building Code. These shall be located, developed and
landscaped in order to enhance the aesthetic quality of the facility. In no
case, shall parking areas/lots encroach into street rights-of-way and shall
follow the Traffic Code as set by the City.
5. Developments that attract a significant volume of public modes of
transportation, such as tricycles, jeepneys, buses, etc., shall provide on-site
parking for the same. These shall also provide vehicular loading and
unloading bays so as street traffic flow will not be impeded.
6. Buffers, silencers, mufflers, enclosures and other noise-absorbing I
materials shall be provided to all noise and vibration-producing machinery.
Noise levels shall be maintained according to levels specified in DENR DA9
No. 30 - Abatement of Noise and Other Forms of Nuisance as Defined by
Law.
7. Glare and heat from any operation or activity shall not be radiated, seen or
felt from any point beyond the limits of the property.
8. No large commercial signage and/or pylon, which will be detrimental
to the skyline, shall be allowed.
9. Design guidelines, deeds of restriction, property management plans and
other regulatory tools that will ensure high quality developments shall be
required from developers of commercial subdivisions and condominiums.
These shall be submitted to the City Planning and Development Office
(CPDO) for review and approval. (Emphasis supplied)
Se9tion 4 7 of Ordinance No. 8119 specifically regulates the "development
of historic sites and facilities."Section 48 regulates "large commercial
signage and/or pylon." There is nothing in Sections 47 and 48 of Ordinance
No. 8119 that disallows the construction of a building outside the
boundaries of a historic site or facility, where such building may affect
the1 background of a historic site. In this case, the Torre de Manila stands
870 meters outside and to the rear of the Rizal Monument and "cannot
possibly obstruct the front view of the [Rizal] Monument." 57 Likewise, ;the
Torre de Manila is not in an area that has been declared as an
"anthropological or archeological area" or in an area designated as a
heritage zone, cultural property, historical landmark, or a national treasure by
the NHCP. 58
Section 15, Article XIV of the Constitution, which deals with the subject of
arts and culture, provides that "[t]he State shall conserve, promote and
popularize the nation's historical and cultural heritage and resources x x x."
Since this provision is not self-executory, Congress passed laws dealing with
the preservation and conservation of our cultural heritage.
One such law is Republic Act No. 10066,59 or the National Cultural Heritage
Act of 2009, which empowers the National Commission for Culture and the
Arts and other cultural agencies to issue a cease and desist order "when
the physical integrity of the national cultural treasures or important cultural
properties [is] found to be in danger of destruction or significant
alteration from its original state."60 This law declares that the State should
protect the "physical integrity" of the heritage property or building if there is
"danger of destruction or significant alteration from its original
state." Physical integrity refers to the structure itself - how strong and
sound the structure is. The same law does not mention
that another project, building, or property, not itself a heritage property or
building, may be the subject of a cease and desist order when it adversely
affects the background view, vista, or sightline of a heritage property or
building. Thus, Republic Act No. 10066 cannot apply to the Torre de Manila
condominium project.
Mandamus does not lie against the City of Manila.
The Constitution states that "[n]o person shall be deprived of life, liberty or
1property without due process of law x x x." 61 It is a fundamental principle
that no property shall be taken away from an individual without due process,
whether substantive or procedural. The dispossession of property, or in this
case the stoppage of the construction of a building in one's own property
would violate substantive due process.
The Rules on Civil Procedure are clear that mandamus only issues when
there is a clear legal duty imposed upon the office or the officer sought to be
compelled to perform an act, and when the party seeking mandamus has a
clear legal right to the performance of such act.
In the present case, nowhere is it found in Ordinance No. 8119 or in any law,
ordinance, or rule for that matter, that the construction of a
building outside the Rizal Park is prohibited if the building is within the
background sightline or view of the Rizal Monument. Thus, there is no legal
duty on the part of the City of Manila "to consider," in the words of the
Dissenting Opinion, "the standards set under Ordinance No. 8119" in
relation to the applications of DMCI-PDI for the Torre de Manila since under
the ordinance these standards can never be applied outside the
boundaries of Rizal Park. While the Rizal Park has been declared a
National Historical Site, the area where Torre de Manila is being built is a
privately-owned property that is "not pap: of the Rizal Park that has been
declared as a National Heritage Site in 1095," and the Torre de Manila area
is in fact "well-beyond" the Rizal Park, according to NHCP Chairperson Dr.
Maria Serena I. Diokno. 62 Neither has the area of the Torre de Manila been
designated as a "heritage zone, a cultural property, a historical landmark or
even a national treasure."63
Also, to declare that the City of Manila failed to consider the standards under
Ordinance No. 8119 would involve making a finding of fact. A finding lot fact
requires notice, hearing, and the submission of evidence to ascertain
compliance with the law or regulation. In such a case, it is the Regional Trial
Court which has the jurisdiction to hear the case, receive evidence, make a
proper finding of fact, and determine whether the Torre de Manila project
properly complied with the standards set by the ordinance. In Meralco v.
Public Service Commission, 64 we held that it is the cardinal right of a party in
trials and administrative proceedings to be heard, which includes the right of
the party interested or affected to present his own case and submit evidence
in support thereof and to have such evidence presented considered by the
proper court or tribunal.
To compel the City of Manila to consider the standards under Ordinance No.
8119 to the Torre de Manila project will be an empty exercise since these
standards cannot apply outside of the Rizal Park - and the Torre de Manila is
outside the Rizal Park. Mandamus will lie only if the officials
The KOR also invokes this Court's exercise of its
extraordinary certiorari power of review under Section 1, Article VIII65 of the
Constitution. However, this Court can only exercise its
extraordinary certiorari power if the City of Manila, in issuing the required
permits and licenses, gravely abused its discretion amounting to lack or
excess of jurisdiction. Tellingly, neither the majority nor minority opinion in
this case has found that the City of Manila committed grave abuse of
discretion in issuing the permits and licenses to DMCI-PDI. Thus, there is no
justification at all for this Court to exercise its extraordinary certiorari power.
Moreover, the exercise of this Court's extraordinary certiorari power is limited
to actual cases and controversies that necessarily involve a violation of the
Constitution or the determination of the constitutionality or validity of a
governmental act or issuance. Specific violation of a statute that does not
raise the issue of constitutionality or validity of the statute cannot, as a rule,
be the subject of the Court's direct exercise of its expanded certiorari power.
Thus, the KOR's recourse lies with other judicial remedies or proceedings
allowed under the Rules of Court.
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC
Approved Medical Centers Association, Inc., 66we held that in cases where
the question of constitutionality of a governmental action is raised, the judicial
power that the courts exercise is likewise identified as the power of judicial
review - the power to review the constitutionality of the actions of other
branches of government. As a rule, as required by the hierarchy of courts
principle, these cases are filed with the lowest court with jurisdiction over the
1subject matter. The judicial review that the courts undertake requires:
1) there be an actual case or controversy calling for the exercise of judicial
power;
2) the person challenging the act must have "standing" to challenge; he must
have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement;
3) the question of constitutionality must be raised at the earliest possible
opportunity; and
4) the issue of constitutionality must be the very lismota of the case.
The lower court's decision under the constitutional scheme reaches the
Supreme Court through the appeal process, through a petition for review
on certiorari under Rule 45 of the Rules of Court.
In the present case, the KOR elevated this case immediately to this Court in
an original petition for injunction which we later on treated as one for
mandamus under Rule 65. There is, however, no clear legal duty on the City
of Manila to consider the provisions of Ordinance No. 8119 for applications
for permits to build outside the protected areas of the Rizal Park. Even if
there were such legal duty, the determination of whether the City of .Manila
failed to abide by this legal duty would involve factual matters which have not
been admitted or established in this case. Establishing factual matters is not
within the realm of this Court. Findings of fact are the province of the trial
courts.
There is no standard in Ordinance No. 8119 for defining or determining the
background sightline that is supposed to be protected or that is part of the
"physical integrity" of the Rizal Monument. How far should a building like the
Torre de Manila be from the Rizal Monument - one, two, three, four, or five
kilometers? Even the Solicitor General, during the Oral Arguments, conceded
that the ordinance does not prescribe how sightline is determined, neither is
there any way to measure by metes and bounds whether al construction that
is not part of the historic monument itself or is outside the protected
area can be said to violate the Rizal Monument's physicalintegrity, except
only to say "when you stand in front of the Rizal Monument, there can be no
doubt that your view is marred and impaired." This kind of a standard has no
parameters and can include a sightline or a construction as far as the human
eyes can see when standing in front of the Rizal Monument. Obviously, this
Court cannot apply such a subjective and non-uniform standard that
adversely affects property rights several kilometers away from a historical
sight or facility.
The Dissenting Opinion claims that "the City, by reason of a mistaken or
erroneous construction of its own Ordinance, had failed to consider its duties
under [Ordinance No. 8119] when it issued permits in DMCI-PDI's favor."
However, MZBAA Zoning Board Resolution Nos. 06 and 06-A67 easily dispel
this claim. According to the resolutions, the City of Manila, through the
MZBAA, acted on DMCI-PDI's application for variance under the powers and
standards set forth in Ordinance No. 8119.
Without further proof that the MZBAA acted whimsically, capriciously, or
arbitrarily in issuing said resolution, the Court should respect MZBAA's
exercise of discretion. The Court cannot "substitute its I judgment :for that of
said officials who are in a better position to consider and weigh the same in
the light of the authority specifically vested in them by law." 68 Since the Court
has "no supervisory power over the proceedings I and actions of the
administrative departments of the government," it "should not generally
interfere with purely administrative and discretionary functions.; 69 The power
of the Court in mandamus petitions does not extend "to direct the exercise
of judgment or discretion in a particular way or the retraction or
reversal of an action already taken in the exercise of either." 70
Still, the Dissenting Opinion insists on directing the re-evaluation by the City
of Manila, through the CPDO, of the permits previously issued in favor of the
Torre de Manila project to determine compliance with the standards ]under
Ordinance No. 8119. It also declares that the circumstances in this case
warrant the prohacvice conversion of the proceedings in the issuance of the
permits into a "contested case" necessitating notice and hearing with all the
parties involved.
Prohac vice means a specific decision does not constitute a precedent
because the decision is for the specific case only, not to be followed in other
cases. A prohac vice decision violates statutory law - Article 8 of the Civil
Code - which states that "judicial decisions applying or interpreting the laws
or the Constitution shall form part of the legal system of the Philippines." The
decision of the Court in this case cannot be prohac vice because by mandate
bf the law everydecision of the Court forms part of the legal system of the
Philippines. If another case comes up with the same facts as the present
case, that case must be decided in the same way as this case to comply with
the constitutional mandate of equal protection of the law. Thus, a prohac vice
decision also violates the equal protection clause of the Constitution.
It is the policy of the courts not to interfere with the discretionary executive
acts of the executive branch unless there is a clear showing of grave abuse
of discretion amounting to lack or excess of jurisdiction. Mandamus does not
lie against the legislative and executive branches or their members acting in
the exercise of their official discretionary functions. This emanates from the
respect accorded by the judiciary to said branches as co-equal entities under
the principle of separation of powers.
In De Castro v. Salas,71 we held that no rule of law is better established than
the one that provides that mandamus will not issue to control the discretion of
an officer or a court when honestly exercised and when such power and
authority is not abused.
In exceptional cases, the Court has granted a prayer for mandamus to
compel action in matters involving judgment and discretion, only "to act, but
not to act lone way or the other," 72 and only in cases where there has
been a clear showing of grave abuse of discretion, manifest injustice,
or palpable excess of authority.73
In this case, there can be no determination by this Court that the City of
Manila had been negligent or remiss in its duty under Ordinance No. 8119
considering that this determination will involve questions of fact. DMCI- PDI
had been issued the proper permits and had secured all approvals and
licenses months before the actual construction began. Even the KOR could
not point to any law that respondent City of Manila had violated and could
only point to declarations of policies by the NHCP and the Venice Charter
which do not constitute clear legal bases for the issuance of a writ of
mandam1s.
The Venice Charter is merely a codification of guiding principles for the
preservation and restoration of ancient monuments, sites, and buildings. It
brings I together principles in the field of historical conservation and
restoration that have been developed, agreed upon, and and laid down by
experts over the years. Each country, however, remains "responsible for
applying the plan within the framework of its own culture and traditions." 74
The Venice Charter is not a treaty and therefore does not become
enforceable as law. The Philippines is not legally bound to follow its directive,
as in fact, these are not directives but mere guidelines - a set of the best
practices and techniques that have been proven over the years to be the
most effective in preserving and restoring historical monuments, sites and
buildings.
The City of Manila concedes that DMCI-PDI's Zoning Permit was granted
without going through the process under Ordinance No. 8119. However, the
same was properly rectified when, faced with mounting opposition, DMCI- JUSTICE CARPIO: Let's go to Ordinance 8119. For residential condominium
PDI itself sought clarification from the City of Manila and immediately began that stand alone, in other words not part of a commercial complex or an
complying with the procedure for applying for a variance. The MZBAA did industrial complex ...
subsequently recommend the approval of the variance and the City Council
of Manila approved the same, ratifying the licenses and permits already ATTY. FLAMINIANO: Yes, Your Honor.
given to DMCI-PDI. Such ratification was well within the right of the City
Council of Manila. The City Council of Manila could have denied the JUSTICE CARPIO: The [Floor Area Ratio (FAR)] is uniform for the entire City
application had it seen any reason to do so. Again, the ratification is a of Manila, the FAR 4, correct? ATTY. FLAMINIANO: I believe so, Your Honor,
function of the City Council of Manila, an exercise of its discretion1 and well it's FAR 4.
within the authority granted it by law and the City's own Ordinance No. 8119.
JUSTICE CARPIO: So it's FAR 4 for all residential condominium complex or
The main purpose of zoning is the protection of public safety, health, industrial projects.
convenience, and welfare. There is no indication that the Torre de Manila
project brings any harm, danger, or hazard to the people in the surrounding
areas except that the building allegedly poses an unsightly view on the taking ATTY. FLAMINIANO: There might be, the FAR might be different when it
of photos or the visual appreciation of the Rizal Monument by locals and comes to condominiums in commercial areas, Your Honor.
tourists. In fact, the Court must take the approval of the MZBAA, and its
subsequent ratification by the City Council of Manila, as the duly authorized JUSTICE CARPIO: Yes, I'm talking of stand-alone ...
exercise of discretion by the city officials. Great care must be taken that the
Court does not unduly tread upon the local government's performance of its ATTY. FLAMINIANO: Yes, Your Honor.
duties. It is not for this Court to dictate upon the other branches bf the
government how their discretion must be exercised so long as these JUITICE CARPIO: ... residential condominiums...
branches do not commit grave abuse of discretion amounting to lack or
excess of jurisdiction.
ATTY. FLAMINIANO: Uniform at FAR 4, Your Honor.
Likewise, any violation of Ordinance No. 8119 must be determined in the
JUSTICE CARPIO: And the percentage of land occupancy is always 60
proper case and before the proper forum. It is not within the power of this
percent.
Court in this case to make such determination. Without such determination,
this Court cannot simply declare that the City of Manila had failed to consider
its duties under Ordinance No. 8119 when it issued the permits in DMCI- ATTY. FLAMINIANO: 60 percent correct, Your Honor.
PDI's favor without making a finding of fact how the City of Manila failed "to
consider" its duties with respect to areas outside the boundaries of the Rizal JUSTICE CARPIO: Okay ... how many square meters is this Torre de
Park. In the first place, this Court has no jurisdiction to make findings of fact Manila?
in an original action like this before this Court. Moreover the City of Manila
could not legally apply standards to sites outside the area covered by the xxx
ordinance that prescribed the standards. With this, I taken in light of the lack
of finding that there was grave abuse of discretion I on the part of the City of ATTY. FLAMINIANO: The land area, Your Honor, it's almost 5,000 ... 5,556.
Manila, there is no basis to issue the writ of mandamus against the City of
Manila.
JUSTICE CARPIO: So, it's almost half a hectare.
During the Oral Arguments, it was established that the granting of a variance
neither uncommon nor irregular. On the contrary, current practice has made ATTY. FLAMINIANO: Yes, Your Honor.
granting of a variance the rule rather than the exception:
JUSTICE CARPIO: And at FAR 4, it can only build up to 18 storeys, I mean
at FAR 4, is that correct?
ATTY. FLAMINIANO: If the 60 percent of the lot...
JUSTICE CARPIO: Yes, but that is a rule.
ATTY. FLAMINIANO: That is a rule, that's the rule, Your Honor.
JUSTICE CARPIO: 60 percent of...
ATTY. FLAMINIANO: Of the land area.
JUSTICE CARPIO: ... buildable, the rest not buildable.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: Okay, so if you look around here in the City of Manila
anywhere you go, you look at stand alone residential condominium
buildings...
ATTY. FLAMINIANO: There's a lot of them, Your Honor.
JUSTICE CARPIO: It's always not FAR 4, it's more than FAR 4.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: And the buildable area is to the edge of the property ...it's
not 60 percent, correct?
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: So, if you look at all the ... residential buildings in
the last ten years, they [have] all variances. They did not follow the
original FAR 4 or the 60 percent (of land occupancy). Every residential
building that stand alone was a variance. ATTY. FLAMINIANO: That's
correct, Your Honor.
JUSTICE CARPIO: So the rule really in the City of Manila is variance,
and the exception which is never followed is FAR 4.
ATTY. FLAMINIANO: FAR 4, it appears to be that way, Your Honor.
xxxx
JUSTICE CARPIO: Every developer will have to get a variance because
it doesn't make sense to follow FAR 4 because the land is so expensive
and if you can build only two storeys on a 1,000-square meter lot, you
will surely lose money, correct? ATTY. FLAMINIANO: Exactly, Your
Honor. 75 (Emphasis supplied)
This, the MZBAA's grant of the variance cannot be used as a basis to
grant the mandamus petition absent any clear finding that said act
amo'1nted to "grave abuse of discretion, manifest injustice, or palpable
excess of authority."
The KOR is Estopped from Questioning the
Torre de Manila Construction.
The KOR is now estopped from questioning the construction of the Torre de
Manila project. The KOR itself came up with the idea to build a structure right
behind the Rizal Monument that would dwarf the Rizal Monument.
In the mid-1950s, the Jose Rizal National Centennial Commission (JRNCC) l
formulated a plan to build an Educational Center within the Rizal Park. In July
1955, the KOR proposed the inclusion of a national theater on the site of the
Educational Center. The JRNCC adopted the proposal. The following[ year, a
law - Republic Act No. 142776 - authorized the establishment of the Jose
Rizal National Cultural Shrine consisting of a national theater, a national
museum, and a national library on a single site. 77
To be built on the open space right behind the 12.7 meter high Rizal
Monument were: the KOR's proposed nationaltheater, standing 29.25 meters
high and 286 meters in distance from the Rizal Monument;
the nationallibrary, standing 25 .6 meters high and 180 meters in distance
from the Rizal ;Monument, with its rear along San Luis Street (now T.M.
Kalaw Street); and facing it, the nationalmuseum, at 19.5 meters high and
190 meters in I distance from the Rizal Monument, with its back along P.
Burgos Street. 78
However, several sectors voiced their objections to the construction for
various reasons. Among them, the need to preserve the open space of the
park, the high cost of construction, the desecration of the park's hallowed
grounds, and the fact that the proposed cultural center including the
129.25 meter high national theater proposed by the KOR would dwarf
the 12.7 meter high Rizal Monument. 79 The JRNCC revised the plan and
only the National Library - which still stands today - was built. 80
According to the NHCP, the KOR even proposed to build a Rizal Center on
the park as recently as 2013.81 The proposal was disapproved by the NHCR
and the Department of Tourism.
Surely, as noble as the KOR's intentions were, its proposed center would
have dwarfed the Rizal Monument with its size and proximity.
In contrast, the Torre de Manila is located well outside the Rizal Park, and to
the rear of the Rizal Monument - approximately 870 meters from the Rizal
Monument and 3 0 meters from the edge of Rizal Park. 82
It is a basic principle that "one who seeks equity and justice must come to
court with clean hands. "83 In Jenosa v. Delariarte, 84 the Court reiterated ,that
he who seeks equity must do equity, and he who comes into equity must
come with clean hands. This "signifies that a litigant may be denied relief by
a court of equity on the ground that his conduct has been inequitable, unfair
and dishonest, or fraudulent, or deceitful as to the controversy in issue.
" 85Thus, the KOR, having earlier proposed a national theater a mere
286meters in distance from the back of the Rizal Monument that would have
dwarfed the Rizal Monument, comes to this I Court with unclean hands. It is
now precluded from "seeking any equitable refuge" 86 from the Court. The
KOR's petition should be dismissed on this ground alone.
Torre de Manila is Not a Nuisance Per Se.
In its petition, the KOR claims that the Torre de Manila is a
nuisance perse that deserves to be summarily abated even without judicial
proceedings. 87 However, during the Oral Arguments, counsel for the KOR
argued that the KOR now believes that the Torre de Manila is a nuisance
per accidens and not a nuisance perse. 88
Article 694 of the Civil Code defines a nuisance as any act, omission,
establishment, business, condition of property, or anything else which: (1)
injures or endangers the health or safety of others; (2) annoys or offends the
senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or
interferes with the free passage of any public highway or street, or any body
of water; or (5) hinders or impairs the use of property.
Thy Court recognizes two kinds of nuisances. The first, nuisance perse, is on
"recognized as a nuisance under any and all circumstances, because it
constitutes a direct menace to public health or safety, and, for that reason,
may be abated summarily under the undefined law of necessity." 89 The
second, nuisance peraccidens, is that which "depends upon certain
conditions and circumstances, and its existence being a question of fact, it
cannot be abated without due hearing thereon in a tribunal authorized to
decide whether such a thing in law constitutes a nuisance. " 90
It can easily be gleaned that the Torre de Manila is not a nuisance per se.
The Torre de Manila project cannot be considered as a "direct menace to I
public health or safety." Not only is a condominium project commonplace in
the City of Manila, DMCI-PDI has, according to the proper government
agencies, complied with health and safety standards set by law. DMCI-PDI
has been granted the following permits and clearances prior to starting the
project: (1) Height Clearance Permit from the Civil Aviation Authority of the
Philippines;91 (2) Development Permit from the HLURB;92 (3) Zoning
Certification from the HLURB;93 (4) Certificate of Environmental Compliance
Commitment from the Environment Management Bureau of the Department
of Environment and Natural Resources;94 (5) Barangay Clearance95 (6)
Zoning Permit;96 (7) Building Permit;97 (8) and Electrical and Mechanical
Permit.98
Later, DMCI-PDI also obtained the right to build under a variance
recommended by the MZBAA and granted by the City Council of Manila.
Thus, there can be no doubt that the Torre de Manila project is not a
nuisance perse.
On the other hand, the KOR now claims that the Torre de Manila is a
nuisance peraccidens.
By definition, a nuisance peraccidens is determined based on its surrounding
conditions and circumstances. These conditions and circumstances must be
well established, not merely alleged. The Court cannot simply accept these
conditions and circumstances as established facts as the KOR would have
us do in this case. 99 The KOR itself concedes that the question of whether
the Torre de Manila is a nuisance peraccidens is a question of fact. 100
The authority to decide when a nuisance exists is an authority to find facts, to
estimate their force, and to apply rules of law to the case thus made. 101 1lhis
Court is no such authority. It is not a trier of facts. It cannot simply take the
allegations in the petition and accept these as facts, more so in this case
where these allegations are contested by the respondents.
The task to receive and evaluate evidence is lodged with the trial courts. The
question, then, of whether the Torre de Manila project is a
nuisance peraccidens must be settled after due proceedings brought before
the proper Regional Trial Court. The KOR cannot circumvent the process in
the guise be protecting national culture and heritage.
The TRO must be lifted.
Injunctive reliefs are meant to preserve substantive rights and prevent further
injury102 until final adjudication on the merits of the case. In the present case,
since the legal rights of the KOR are not well-defined, clear, and certain, the
petition for mandamus must be dismissed and the TRO lifted.
The general rule is that courts will not disturb the findings of I administrative
agencies when they are supported by substantial evidence. In this case,
DMCI-PDI already acquired vested rights in the various permits, licenses, or
even variances it had applied for in order to build a 49-storey building which
is, and had been, allowed by the City of Manila's zoning ordinance.
As we have time and again held, courts generally hesitate to review
discretionary decisions or actions of administrative agencies in the absence
of proof that such decisions or actions were arrived at with grave abuse of
discretion amounting to lack or excess of jurisdiction.
In JRS Business Corp. v. Montesa, 103 we held that mandamus is the proper
remedy if it could be shown that there was neglect on the part of a tribunal in
the performance of an act which the law specifically enjoins as a duty, or
there was an unlawful exclusion of a party from the use and enjoyment be a
right to which he is clearly entitled. Only specific legal rights may be enforced
by mandamus if they are clear and certain. If the legal rights of th6 petitioner
are not well-defined, definite, clear, and certain, 104 the petition must be
dismissed. Stated otherwise, the writ never issues in doubtful cases. It
neither confers powers nor imposes duties. It is simply a command to
exercise a power already possessed and to perform a duty already
imposed. 105
In sum, bearing in mind the Court does not intervene in discretionary acts of
the executive department in the absence of grave abuse of discretion, 106 and
considering that mandamus may only be issued to enforce a clear and
certain legal right, 107 the present special civil action for mandamus must be
dismissed and the TRO issued earlier must be lifted.
A FINAL WORD
It had been Rizal’s wish to die facing the rising sun. In his Mi Ultimo Adios,
the poem he left for his family the night before he was executed, Rizal wrote:
Yo muero cuando veo que el cielo se colora
Y al fin anuncia el dia tras lobrego capuz 108
[Ako’y mamamatay, ngayong namamalas
na sa Silanganan ay namamanaag
yaong maligayang araw na sisikat
sa likod ng luksang nagtabing na ulap.] 109
[I die just when I see the dawn break,
110
Through the gloom of night, to herald the day]
Yet at the point of his execution, he was made to stand facing West towards
Manila Bay, with his back to the firing squad, like the traitor the colonial
government wished to portray him. He asked to face his executioners, facing
the East where the sun would be rising since it was early morning, but the
Spanish captain did not allow it. As he was shot and a single bullet struck his
frail body, Rizal forced himself, with his last remaining strength, to turn
around to face the East and thus he fell on his back with] his face to tGhe sky
and the rising sun. Then, the Spanish captain approached Rizal and finished
him off with one pistol shot to his head.
Before his death, Rizal wrote a letter to his family. He asked for a simple
tomb, marked with a cross and a stone with only his name and the date of his
birth and death; no anniversary celebrations; and interment at Paang
Bundok(now, the Manila North Cemetery). Rizal never wanted his grave to
be a burden to future generations.
The letter never made it to his family and his wishes were not carried out.
The letter was discovered many years later, in 1953. By then, his remains
had been entombed at the Rizal Monument, countless anniversaries had
been . celebrated, with memorials and monuments built throughout the world.
Rizal's wish was unmistakable: to be buried without pomp or pageantry; to
the point of reaching oblivion or obscurity in the future. 111 For Rizal's life was
never about fame or vainglory, but for the country he loved dearly and for
which he gave up his life.
The Rizal Monument is expressly against Rizal' s own wishes. That Rizal's
statue now stands facing West towards Manila Bay, with Rizal's back to the
East, adds salt to the wound. If we continue the present orientation of Rizal's
statue, with Rizal facing West, we would be like the Spanish captain who
refused Rizal's request to die facing the rising sun in the East. On the other
hand, if Rizal' s statue is made to face East, as Rizal had desired when he
was about to be shot, the background - the blue sky above Manila Bay -
would forever be clear of obstruction, and we would be faithful to Rizal's
dying wish.
WHEREFORE, the petition for mandamus is DISMISSED for lack of merit.
The Temporary Restraining Order issued by the Court on 16 June 2015
is LIFTED effective immediately.
SO ORDERED.