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SUPREME COURT
MANILA
EN BANC
BAGONG
ALYANSANG
MAKABAYAN
(BAYAN),
represented by its Secretary General,
RENATO M. REYES, JR., et al.,
Petitioners,
-versusDEPARTMENT
SECRETARY
GAZMIN, et al.,
OF
DEFENSE
VOLTAIRE
Respondents.
x---------------------------------------------x
RENE A.V. SAGUISAG, et al.,
Petitioners,
-versusEXECUTIVE
SECRETARY
PAQUITO N. OCHOA, JR., et al.,
Respondents.
x---------------------------------------------x
KILUSANG
MAYO
UNO,
represented by its Chairperson,
ELMER LABOG, et al.,
Petitioners-in-Intervention.
x---------------------------------------------x
RENE A.Q. SAGUISAG, JR.,
Petitioners-in-Intervention.
x-----------------------------------------------------------------------------------x
MEMORANDUM
MEMORANDUM
Respondents, through the Office of the Solicitor General (OSG),
respectfully state:
RELEVANT FACTS
1.
The Mutual Defense Treaty. On 30 August 1951, the Republic of
the Philippines and the United States of America (US) entered into the
Mutual Defense Treaty (MDT) which stipulates that the parties shall
maintain and develop their individual and collective capacity to resist
armed attack.1 The MDT, concurred in by the Philippine Senate on 12
May 1952,2 locates the parties obligations within their commitments
under the Charter of the United Nations (UN). Article I of the MDT
provides:
The Parties undertake, as set forth in the Charter of the United
Nations, to settle any international disputes in which they may be
involved by peaceful means in such a manner that international peace
and security and justice are not endangered and to refrain in their
international relations from the threat or use of force in any manner
inconsistent with the purposes of the United Nations.
2.
The Visiting Forces Agreement. To implement the MDT and the
objective of both parties to strengthen their present efforts to collective
defense for the preservation of peace and security,3 the Republic of the
Philippines and the US entered into the Visiting Forces Agreement (VFA)
on 10 February 1998. The VFA was concurred in by the Philippine Senate
on 27 May 1999.4 It lays down the terms and conditions under which US
personnel5 and facilities6 may be present in the Philippines.
3.
Under the VFA, the Philippines and the US have participated
in the annual Balikatan exercises, which involve the training of Philippine
troops to enhance defense capabilities and promote interoperability of
MEMORANDUM
ISSUE
WHETHER THE ENHANCED DEFENSE COOPERATION
AGREEMENT IS UNCONSTITUTIONAL.
SUMMARY OF ARGUMENTS
I.
II.
III.
THE EDCA
IS
AN
EXECUTIVE
IN
AGREEMENT
THE
WHICH
CONDUCT
OF
ACTIVITIES
ALREADY
AUTHORIZED
D. THE
MDT
AND
THE
VFA
CONSTITUTE
THE
IV.
A SENATE
REFERRAL
OF
THE
EDCA
WILL
CREATE
V.
7
MEMORANDUM
A. ON PREPOSITIONING
B. ON OPERATIONAL CONTROL AND SELF DEFENSE
C. ON TELECOMMUNICATIONS
D. ON NUCLEAR WEAPONS
E. ON DISPUTE RESOLUTION
MEMORANDUM
7.
In Philconsa v. Enriquez,11 suits were filed by some members of
the Senate to question the validity of a presidential veto and a condition
imposed on an item in an appropriation bill without an enabling
resolution for the purpose. Nevertheless, the Court allowed the suits and
ruled that [a]n act of the Executive which injures the institution of
Congress causes a derivative but nonetheless substantial injury, which can
be questioned by a member of Congress.12 The Court said that [t]o the
extent the power of Congress is 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.13
8.
The rule, therefore, is that only the Senate itself may sue to
invoke the powers of the courts on matters involving its constitutional
prerogatives. This naturally makes sense given the requirement of injury
in fact essential for the operation of the case or controversy
component of the jurisdiction of courts in constitutional law cases. Those
whose rights are allegedly violated are, of course, in the best position to
fully articulate the nature and details of the injury they have suffered,
creating that concrete adverseness that sharpens the presentation of
issues.14
9.
By way of exception, incumbent Senators have been allowed by
courts to file cases in behalf of their institution, in cases where the court is
convinced that there are sufficient grounds to dispense with the rules of
agency. At a minimum, only incumbent Senators may be recognized to
have standing to raise the issue of Senate concurrence because it is their
constitutional function that is allegedly impaired.15
10. Only incumbent Senators may raise this issue because they
alone have legal standing to see to it that the prerogative, powers and
11
MEMORANDUM
Biraogo v. The Philippine Truth Commission, G.R. No. 192935, 07 December 2010.
Joint Hearing by the Senate Committee on Defense and Security with the Senate
Committee on Foreign Relations, 13 May 2014; Hearing by the Senate Committee on
Foreign Relations, 22 October 2014 and 01 December 2014.
18
Senate Foreign Relations Committee Chairperson Senator Miriam Defensor-Santiago said
that she would ask her colleagues to adopt a resolution that will express the Senates views
that
the
agreement
should
be
concurred
by
the
Senate.
See
http://www.philstar.com/headlines/2014/12/01/1397976/law-experts-tell-senate-edcaneeds-senate-concurrence
17
MEMORANDUM
petition does not automatically present a case within the meaning of the
actual case or controversy requirement of the Constitution.
16. An actual case or controversy which would trigger the
exercise of the Honorable Courts judicial review powers refers to a
conflict of legal right, an opposite legal claim susceptible of judicial
resolution.19 It must be definite and concrete, bearing upon the legal
relations of parties who are pitted against each other due to their adverse legal
interests.20
17. Here, there is no such actual conflict between the Executive and the
Senate. Thus, the issue of Senate concurrence does not present a justiciable
controversy which the Honorable Court may decide. Otherwise, the
Honorable Court could end up arbitrating constitutional questions in the
abstract and allocat[ing] constitutional boundaries21 without a dispute
upon the instance of third parties, however well-intentioned.
18. Inappropriateness of Taxpayer Standing. Petitioners cannot also
sue as taxpayers because the EDCA is neither a tax measure, nor one
primarily directed at the disbursement of public funds. In the absence of a
credible allegation of illegal or unconstitutional disbursement of public
funds, the Honorable Court cannot simply take at face value petitioners
bare assertion of their right to sue as taxpayers. The Honorable Court
should avoid being goaded into assuming jurisdiction at the say-so of
anyone who pays taxes.
19. The Inapplicability of the Transcendental Importance Exception. The
mere invocation of transcendental importance cannot also confer
standing on petitioners. In Anak Mindanao Party-List Group v. Executive
Secretary,22 the Honorable Court held that a party who assails the
constitutionality of a statute must have a direct and personal interest. It
must show not only that the law or any governmental act is invalid, but
also that it sustained or is in immediate danger of sustaining some direct
19
MEMORANDUM
injury as a result of its enforcement, and not merely that it suffers thereby
in some indefinite way.23
20. Petitioners cannot use transcendental importance to cure
their inability to comply with the constitutional requirement of standing.
As the Honorable Court said, [c]ourts do not sit to adjudicate mere
academic questions to satisfy scholarly interest therein, however
intellectually solid the problem may be.24
21. The Honorable Court should already note that the overuse of
transcendental importance as an exception to the traditional
requirements for constitutional litigation has cheapened the value of the
Constitutions safeguards to adjudicationcase or controversy, standing,
prematurity, political questions, mootnessthat have long served to
protect the Supreme Court from unnecessary litigation of constitutional
questions and potential clashes with the other departments of
government.
22. The Supreme Courts role under the separation of powers
requires it to decide only legal disputes. The Court is not the appropriate
venue for airing historical grievances or vindicating purely symbolic
claims.
II.
EXECUTIVE AGREEMENTS FIND SUPPORT
IN THE CONSTITUTION AND JURISPRUDENCE.
23. The EDCA is an executive agreement that has already
entered into force, as all internal requirements of the Philippines and the
US have already been complied with. This is consistent with the
representations of the parties.
24. President Benigno Aquino III ratified the EDCA on 06 June
In the case of the US, it considers the EDCA to have entered into
force on 25 June 2014, as reflected in its diplomatic note of the same
date.26 Finally, the EDCA has been filed with the US Congress pursuant
2014.25
23
Id.
Philippine Association of Universities and Colleges v. Secretary of Education, G.R. No. L-5279, 31
October 1955.
25
See Annex A.
26
See Annex B.
24
MEMORANDUM
Gonzales v. Hechanova, G.R. No. L-21897, 22 October 1963; Secretary of Justice v. Lantion, G.R.
No. 139465, 18 January 2000.
28
See Annex C.
MEMORANDUM
10
(ii)
(iii)
29
Garcia and MasonCongressional Oversight and Related Issues Concerning International Security
Agreements Concluded by the United States, Congressional Research Service, 07 June 2012, p. 2.
30
Id at pp. 2-7.
31
Providing for the Guidelines in the Negotiation of International Agreements and Its
Ratification.
32
Interestingly, Sen. Miriam Defensor-Santiago, Chairperson of the Senate Committee on
Foreign Relations, recognizes this authority of the DFA and the distinction between a treaty
and an executive agreement. She said: it is the foreign affairs department which
determines whether an agreement is an executive agreement on one hand; or a treaty on the
other hand. This distinction is important, because while it is claimed that an executive
agreement needs only ratification by the President, a treaty needs concurrence by the Senate.
This distinction drawn between an executive agreement and a treaty is based on the 1961
case of Commissioner of Customs v. Eastern Sea Trading. Defensor-Santiago, Procedure for
Senate Concurrence to Treaties (2007), p. 2, cited in Malaya and Mendoza-Oblena, Philippine Treaty
Law and Practice, 35 INTEGRATED BAR OF THE PHILIPPINES JOURNAL 1 (2010).
MEMORANDUM
11
33
Emphasis supplied.
Emphasis supplied.
35
G.R. No. L-14279, 31 October 1961.
34
MEMORANDUM
12
37. The Court further said that [t]he right of the Executive to
enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage and that [t]he
validity of these [executive agreements] has never been seriously
questioned by our courts. These executive agreements may cover 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.
38. In Bayan v. Romulo,37 the Honorable Court reiterated the
distinction between treaties and executive agreements, and affirmed the
power of the President to enter into executive agreements without Senate
concurrence. More importantly, the Honorable Court recognized a treatyauthorized or a treaty-implementing executive agreement as one type of executive
agreement.
39. In China National Machinery and Equipment Corp. Group
(CNMEG) v. Santamaria,38 the Honorable Court enumerated the requisites
of an executive agreement pursuant to the Vienna Convention: (a) the
agreement must be between states; (b) it must be written; and (c) it must
[be] governed by international law.
36
MEMORANDUM
13
39
MEMORANDUM
14
MEMORANDUM
15
43
MDT, Preamble. See list of island territories under Philippine jurisdiction, attached as
Annex D.
MEMORANDUM
16
44
MEMORANDUM
17
58. The contention that the VFA is only an agreement relating to troops is
negated by the text of the VFA. The term forces is broader than troops.
Article I defines United States personnel as United States military and
civilian personnel temporarily in the Philippines in connection with
activities approved by the Philippine Government. Article VII is explicit
that the VFA relates to the entry or removal of US facilities in
connection with activities to which [the VFA] applies. It stipulates that
United States Government equipment, materials, supplies, and other
propertyin the Philippinesin connection with activities to which [the
VFA] applies may be imported or exported. 50 Article VIII allows the
entry of such facilities as vehicles, vessels and aircraft in Philippine
territory.
59. The authorization of activities under the VFA serves as the operative
license for allowing troops, equipment, supplies, vessels, aircraft, etc. This is
confirmed by the Honorable Courts decision in Lim when it said that
[t]he VFA permits United States personnel to engage, on an
impermanent basis, in activities, the exact meaning of which was left
undefined. The Honorable Court ruled that
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
50
MEMORANDUM
18
Both the history and intent of the Mutual Defense Treaty and
the VFA support the conclusion that combat-related activitiesas
opposed to combat itself are indeed authorized.
MEMORANDUM
19
MEMORANDUM
20
56
Lum and Margesson, Typhoon Haiyan (Yolanda): U.S. and International Response to Philippines
Disaster, Congressional Research Service, 10 February 2014.
MEMORANDUM
21
MEMORANDUM
22
think things through and come up with a better response with all the
relevant data.
77. Furthermore, because the HADR equipment will be in the
Philippines, Philippine personnel are given the invaluable opportunity to
be trained in their operation and maintenance. This redounds to the
benefit of the Philippines, specifically in the increased effectivity of
disaster and relief operations, and generally in the raised competence of
our military forces.
78. Thus, from the Philippine perspective, the objectives of the
EDCA are twofold: (1) externally, to secure the territorial integrity of the
Philippine State and (2) internally, to improve the countrys HADR
capability.
79. In ratifying the EDCA, the President has made a
determination that both its external and internal aspects will advance the
national security of the Philippines. The President must be given the
widest latitude in balancing the nations limited options and calibrating his
responses to ensure their maximum intended effect. The Honorable
Court must approach this case with deference to a national security
decision already made.
D.
The MDT and the VFA constitute prior, sufficient licenses for
the EDCA.
80. The MDT and the VFA are valid and subsisting international
agreements that already allow the entry of US troops and facilities in the
Philippines under Article XVIII, Section 25 of the Constitution. The
Honorable Court has consistently affirmed the constitutionality of the
MDT and the VFA in BAYAN v. Zamora,58 Lim v. Executive Secretary,59
Nicolas v. Romulo60 and Arigo v. Swift.61
81. Both the MDT and the VFA constitute the prior, sufficient
licenses for the EDCA. The EDCA simply operationalizes and articulates
58
MEMORANDUM
23
62
See Annex E.
MEMORANDUM
24
89. First, under Article II.4 of the EDCA, all facilities and areas
that may be used and accessed by the US are provided by the Philippine
Government through the AFP. Article V of the EDCA clearly states that
[t]he Philippines shall retain ownership of and title to Agreed
63
MEMORANDUM
25
(iii)
(iv)
(v)
(vi)
67
MEMORANDUM
26
Article III. 1, Agreement Between the Republic of the Philippines and the United States of
America Concerning Military Bases. (Signed in Manila, March 14, 1947). Emphasis supplied.
76
See Flowchart, attached as Annex F.
MEMORANDUM
27
MEMORANDUM
28
77
78
MEMORANDUM
29
On Prepositioning
MEMORANDUM
30
114. The operational control granted to the US does not refer to the control
over a military base or activity. Control over the Philippine military base
remains with the Philippine military commander while control over an
activity is exercised by the Philippines when it gives its consent and when
it sets the specific parameters of the activity approved. Operational
control is a characteristic inherent in military command and it pertains to
a much lower lever of controlthat of a superior officer over a
subordinate. Under the US Department of Defense glossary cited by
petitioners, operational control refers to:
The authority to perform those functions of command over
subordinate forces involving organizing and employing commands and
forces, assigning tasks, designating objectives, and giving authoritative
direction necessary to accomplish the mission.79
115. Within the framework of the permission system under the VFA, a
mission necessarily refers to the activity approved by the MDB/SEB.
be exercised by
MEMORANDUM
31
80
MEMORANDUM
32
MEMORANDUM
33
124. Article VI.3 of the EDCA does not refer to the self-defense of states,
legitimized through appropriate international processes and requiring the determination
of just cause. Rather, the concept is grounded in specific tactical situations
where an armed force is constrained to defend itself through combat. It is
limited in scope (only over the troops being attacked and always subject to
the rules of engagement) and area (the area of conflict). It does not refer
to control over the security of the Philippine military base, the primary
responsibility over which the EDCA explicitly gives to the Philippines.84
125. Even at the tactical level, it should be noted that the use of
force is not an automatic response to any attack. Both US armed forces
and the AFP practice weapons discipline, applying force based on rules of
engagement that can be tailored based on the nature of each mission.
126. The consent mechanisms in place, the limited scope of
operational control, and the explicit provisions of the EDCA granting
primary responsibility over security to the Philippines ensure that the
Philippine government exercises control over its military bases as well as
the activities to be conducted in Philippine soil at the highest levels and
prevent the US, in the guise of security, from assuming overall control.
C.
On Telecommunications
at
http://www.peacekeepingbestpractices.unlb.org/Pbps/library/Handbook%20on%20UN%
20PKOs.pdf
84
Article VI.2.
MEMORANDUM
34
On Dispute Resolution
85
MEMORANDUM
35
On Nuclear Weapons
134. The EDCA does not violate the policy of freedom from
nuclear weapons under Article II, Section 8 of the Constitution. Article
IV.6 of the EDCA provides that [t]he prepositioned materiel shall not
include nuclear weapons. All prepositioning must be carried out through
bilateral security mechanisms such as the MDB and the SEB. Through the
MDB and SEB, the Philippine Government will regulate the equipment,
supplies and facilities that may be allowed entry into the Philippines.
Article IV.1 of the EDCA provides
The Philippines hereby authorizes United States forces, through
bilateral security mechanisms, such as the MDB and SEB, to
preposition and store defense equipment, supplies and materiel
(prepositioned materiel), including, but not limited to, humanitarian
assistance and disaster relief equipment, supplies and materiel, at
Agreed Locations. United States forces shall notify the AFP in advance
regarding the quantities and delivery schedules of defense equipment,
supplies and materiel that United States forces intend to preposition in
Agreed Locations, as well as who will make such deliveries.
135. The argument that Article IV.1 of the EDCA only applies to
prepositioned materiel and would not bar the entry of US vessels and
aircraft carrying nuclear weapons is specious and contradicted by the
express provisions of the EDCA. The EDCA is premised on full respect
for the Philippine Constitution and Philippine laws88 and the parties
88
EDCA, Preamble.
MEMORANDUM
36
138. Petitioners maintain that the EDCA violates the Labor Code,
the National Internal Revenue Code, the Local Government Code, and
the National Building Code, among others.
139. Two reasons should sweep aside petitioners assorted
objections to the EDCA
140. A sovereign nation cannot be bound by the laws of another.
The Republic of the Philippines, as a sovereign state, may apply its laws to
its subjects and within its territory. It is inherent in statehood, and a
functional requirement in international relations, that a states local laws
cannot bind another sovereign state. This immunity from jurisdiction
applies to contingents of US Armed Forces allowed to enter the country.
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
MEMORANDUM
37
144. Under the EDCA, taxes on the use of water, electricity, and
other public utilities by the US forces and US contractors will be for the
89
Nicolas v. Romulo, supra note 8, citing DIETER FLECK, ED., THE HANDBOOK OF THE LAW
(2001).
90
Supra note 37.
OF VISITING FORCES
MEMORANDUM
38
PRAYER
WHEREFORE, it is respectfully prayed that:
1) The application for a Temporary Restraining Order and/or Writ
of Preliminary Injunction be DENIED; and
2) The petitions be DISMISSED for LACK OF MERIT.
Respondents pray for other just and equitable reliefs under the
premises.
Manila, 15 December 2014.
91
Article VI, Section 28(4): No law granting any tax exemption shall be passed without the
concurrence of a majority of all the Members of the Congress.
92
See National Power Corporation v. Province of Quezon, G.R. No. 171586, 15 July 2009.
MEMORANDUM
39
FLORIN T. HILBAY
Acting Solicitor General
Roll No. 44957
IBP Lifetime No. 08505
MCLE Exemption No. IV-001068, 5-14-13
EMERSON S. BAEZ
Associate Solicitor
Roll No. 56723
IBP No. 953502, 01-08-14
MCLE Compliance No. V-0002900, 07-09-14
GERARDO E. MENDOZA
Associate Solicitor
Roll No. 62511
IBP No. 965933, 4-3-2014
MCLE Compliance No. V-0003278
MELBOURNE D. PANA
Associate Solicitor
Roll No. 61900
IBP No. 954309, 1-9-14
MCLE Compliance No. N/A
MEMORANDUM
40
Copy Furnished:
HARRY L. ROQUE
ROMMEL R. BAGARES
ETHEL C. AVISADO
Roque & Butuyan Law Offices
Counsel for Petitioners in G.R. No. 212426
1904 Antel Corporate Center
121 Valero St., Salcedo Village
Makati City
RACHEL F. PASTORES
AMYLYN B. SATO
FRANCIS ANTHONY P. PRINCIPE
SANDRA JILL S. SANTOS
CARLOS A. MONTEMAYOR, JR.
Public Interest Law Center
Counsel for Petitioners in G.R. No. 212444
4/F Kajia Bldg., 7836 Makati Avenue
MARIA KRISTINA C. CONTI
MANEEKA ASISTOL SARZA
National Union of Peoples Lawyers
Counsel for Petitioners in G.R. No. 212444
3/F Erythrina Building
No. 1 Matatag cor. Maaralin Sts.
Central District, Quezon City
REMEGIO D. SALADERO, JR.
NOEL V. NERI
VICENTE JAIME M. TOPACIO
Pro-Labor Legal Assistance Center
Counsel for Petitioners-in-Intervention
No. 33-B E. Rodriguez Sr. Avenue, Quezon
City
RENE A.V. SAGUISAG, SR.
Counsel for Petitioner-in-Intervention
4045 Bigasan St., Palanan
1235 Makati
N.
EXPLANATION
(Pursuant to Rule 13, Section 11 of the
1997 Rules of Civil Procedure)
This Memorandum is being served by registered mail due to lack of sufficient personnel in
the Office of the Solicitor General to effect personal service.
RAMON ANTONIO D. PANDAN
Associate Solicitor