REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA
EN BANC

BAGONG
ALYANSANG
MAKABAYAN
(BAYAN),
represented by its Secretary General,
RENATO M. REYES, JR., et al.,
Petitioners,

G.R. No. 212444

- versus -

DEPARTMENT
SECRETARY
GAZMIN, et al.,

OF

DEFENSE
VOLTAIRE
Respondents.

x:------------------------------------------------x
RENE A.V. SAGUISAG, et al.,
Petitioners,

G.R. No. 212426

- versus -

EXECUTIVE
SECRETARY
PAQUITO N. OCHOA, JR., et al.,
Respondents.
'.8:------------------------------------------------:x
KILUSANG
MAYO
UNO,
represehted by its Chahpersoh,
ELMER LABOG, et ;il.,
Petitioners-in-Intervention.

x:------------------------------------------------:x
RENE A.Q. SAGUISAG, JR.,
Petitioner-in-Intervention.

:x-----------------------------------------------------------------------------------:x

Consolidated Co1runetlt

G.R. Nos. 212444, 212426

CONSOLIDATED COMMENT
The Enhanced D~fhnse Cooperation Agreement is an implementing devise far
the &public's general commitments under the Mutual Defense Treaty and its specific
com111ittJJents under the Visiting F'orces Agreement. The President as Con1mander-inChief; Chief Executive, and Chief Architect of.foreign polit!J has .the tonstitutional
aHtho1#y and du!J lo maintain the integn!J ef the nati'onafterritory, promote national
secuti!J~ secure ~tJeace and prevent hostilities. The .formulation and execution of the
detailr ofa national deje11Se poliqy require the highestpossiblejudicial deference.
Respondents, through the Office of the Solicitor General (OSG),
respectfully state:

RELEVANT FACTS
1.
The Mutual Defense Trea[y. On 30August1951, the Republic of
the Philippines ~tnd the United States of America (US) entered into the
Mutual Defense Treaty (1'v1D'I) 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 undert'<tke, as set fotth 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 th.teat .or use of 01-ce in any manner
inCDnsistent 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 effo1ts to collective
defense for the presei-vation of peace and security;':; the Republic of the
Philippines and the US entered into the Visiting Forces Agreement (VPA)
on 10 February 1998. The VFA was concurred in by the Philippine Senate
on 27 May 1999.i~ It lays down the te1ms and conditions under which US
pers<)nnelS and fadlities6 may be present in the Philippines. Under the
VFA, the Philippines and the US have partidpated in the annual Balikatan
exercises, which involve the training of Philippine troops to enhance
1

MD1', Art. II.

S.R. No. 84, 12 Mav 1952.
3
VFA, Pteamble. ,
4
S.R. No. 18, 27May1999.
~ VFA, Article I.
6
VFA, A.ttide VII.
2

_...................

----------------~~

..............-

~~-----------------~
Consolidated Comment

G.R. Nos. 212444, 212426

defense capabilities and promote interoperability of Philippine and US

forces. 7

3.
'The Enhanced Defense Cooperation Agreement. 'I'o implement the
MDT and the VF.A, 8 the Enhanced Defense Cooperation Agreement
(EDCA) was signed by Department of National Defense (DND)
Secretary Voltaire Gazmin for the Philippines and by US Ambassador to
the Philippines Philip Goldberg for the US on 28 April 2014.

4.
Two petitions under Rule 65 of the Rules of Court, i.e. the
BAYAi'\J Petition in G.R. No. 212444 and the Saguisag Petition in G ..R.
No. 212426, seek to declare the EDCA unconstitutional and to prohibit
its implementation. In a Resolution dated 03 June 2014, the Honorable
Court ordered the consolidation of these petitions and required
respondents to comment.
5.
Subsequently~ petitions-in-intervention were flied by .Kilusang
Mayo Uno, et al. and Rene A.Q. Saguisag, Jr. On 08 July 2014, the
Honorable Court resolved to require respondents to comment on the
petitions-in-intetvention) \.vithout giving due coutse to the said petitions.

6.
Considering that the petitions involve common questions of
law, respondents filed a Motion to File a Consolidated Comment on 12
August 2014. On the same date, respondents moved for an additional
extension of time to file the Consolidated Comment because the OSG has
not yet received a copy of the petition-in-intervention filed by Rene A.Q.
Saguisag, J1:.

7.
To date, the Honorable Court has not yet issued a resolution
on these motions. In the interest of time, respondents hereby file this
Consolidated Comment to the petitions.

PRELIMINARY AVERMENTS
8.
Lack of Standing to Assert Institutional Prerogatives.
Petitioners assail the constitutionality of the EDCA on the ground that it
is a treaty that requires the concurrence of the Senate under Article XVIII,
Section 25 of the Constitution. .However, none of the petitioners is a
member of the Senate.

Terms of Reference approved by Departtnent of Foreign Affairs Secretary Teofisto T.

Gui11gona, cited in Litn v. Exec;ltive Secretai)', G.R. No. 151445, 11April2002.

EDCA, Preamble.

...............--

~~-----------------Consolidated Comment

G.R. Nos, 212444, 212426

9.
The rule is that only incumbent Senators have standing to
raise the issue of Senate concurrence because it is their constitutional
function that is allegedly irnpaired. 9 The Honorable Court has ruled that
only incumbent Senators may raise this issue because they alone have
"legal standing to see to it that the prerogative, powers and privileges
vested by the Constitution in their office remain inviolate/'10 It is a
curious fact that only former Senators joined petitioners in filing these
cases. As such, they are in no position to concur in the EDCA and thus
ate not injured by the alleged lack of Senate concurrence.
10. There is also no allegation that somehow the members of the
Senate have been prevented from exercising their privileges. Absent any
evidence that Senators have been prevented from invoking the privileges
of their institution, the Honorable Court may well presume that the
Senate itself secs no need for such concurrence. Otherwise, the
Honorable Court could end up arbitrating constitutional questions and
''allocatling] constitutional boundaries 11 without a dispute upon the
instance of third parties, however well-intentioned.
11. Inappropriateness ef 'I'axpqyer Standing. Petitioners cannot also
sue as taxpayers because the EDCA is neither a tax measure, nor one
directed at the disbursement of public funds. In the absence of credible
allegation of an 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 ta.xpayers. The Honorable Court should
avoid being goaded into assuming jurisdiction at the say-so of anyone who
pays taxes.
12. The Inapplicability ifthe 'Transcendental I111portance"Exception. The
mere invocation of "transcendental importancen cannot also confer
standing on petitioners. In Anak LViindanao Party-list Group v. .Executive
Secretary, 12 the Honorable Court held that "a party who assails the
constitutionality of a statute must have a direct and personal interest. lt
must show not only that the la\V' or any governmental act is invalid~ but
also that it sustained or is in immediate danger of sustaining some direct
inju11r as a result of its enforcement, and not merely that it suffers thereby
in some indefinite way." 13 Petitioners cannot use "transcendental
importance" to cure their inability to comply with the constitutional
requirement of standing. As the Honorable Court saidJ "[c]ourts do not sit

CONS'l1TUTION, At:t VII, Sec. 21. No treaty or international agreement shall be valid and
effective unless conct~tred in by at least two-thirds of all the Members of the Senate.
rn Biraogo v. The Philippine Tnlth Commission, G.R. No. 192935, 07 December 2010.
11
A1{!;am v. Eiectora/ Commission, G.R. No .. L-45081, 15 July 1936.
12
G.R. No. 166052, 29 August 2007.
i ; Id.

Consolidated Comment

G.R. Nos, 212444, 212426

to adjudicate mere academic questions to satisfy scholarly interest therein,

however intellectually solid the problem may be.''14
13. At this time in our constitutional history, 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 constitution's
safeguards to adjudication-case or controversy, standing, prematurity,
political questions, mootness-that have long served to protect the
Supreme Court from unnecessary litigation of constitutional questions
and potential clashes with the other departments of government.
14. Policy quesdons. Objections have been raised against the
EDCA on the ground that it is highly disadvantageous to the Philippine
Government. It is argued that "[a]lthough [the EDCA] was signed in the
context of heightened tension "With China and dangled as proof of
America's ironclad' commitment to defend the Philippines against
Chinese expansionism, there is no assurance that the United States will
actually come to the aid of the Philippines in case of invasion by Chimi;" 15
It is also claimed that "[t]he terms and provisions of the EDCA are an
affront to the national interest as they are evidently lopsided in favor of
the [US]." 16
15. There is a difference between political posturing and a legal
argument. W11ether the EDCA is "highly disadvantageous to the
Philippine Government" or "lopsided in favor of the [US]"-is not a legal
question that can serve as a basis for a sound legal argument. \Vhile
respondents maintain that it is in the interest of the Philippines to enter
into the EDCA, the Honorable Court is not the appropriate forum to
settle these policy questions. Under the democratic framework of the
Constitution, petitioners should address their advocacies to the political
branches of government. Petitioners cannot simply ask the Honorable
Court to arbitrate policy questions,. especially in matters of national
security and foreign affairs. \Ve urge the Honorable Court to distinguish
benvcen political speech and constitutional argument.
16. In the language and principles of the Constitution, we can
find a rational separation between debates that should be made in a
special legal forum such as the Supreme Court, on one hand, whose
jurisdiction is bounded by the requirements of Article VIII, Sections 1
14

Philippim .,4ssociatio11 qf Unzi1mities and Colkges v, Secretary

October :1955.
L> St{g11frag J?etirion, p. 36.
16

Id at 39.

ef Ed11ctJtio11,

G.R. No. L-5279, 31

Consolidated Comment

G.R. Nos. 212444, 212426

and 5, and those that should be held in law schools, the various media,
and on the streets, on the od1er hand.
17. In fact, it is entirely within the HonOrable Court's discretion
to rule separately (that is, in a separate resolution) on the jurisdictional
guestions presented in the vali.ous petitions in these consolidated cases.
Such decisional strategy would provide a specific occasion for the
Honorable Court to seriously taddc the qucstiort whether a decision on
the substantive questions should be had in the first place. Too many cases
have been decided on the merits by the Honorable Court that perhaps
should have been decided with a mote deliberate focus on the
jurisdictional questions.

18. In any case, since the EDCA is an implementing agreement

of the MDT and the Vf:i'A, policy questions relating to activities involving
American troops and facilities ha\te long been settled by the political
branches through their continued implementation of these international
agreements. The Honorable Comt has consistently affirmed the
constitutionality of the MDT and the Vl:'"'A in Bqyan v. Zamora, 17 Lim,
Nicolas v. Romufo1B and Arigo v. Sw!ft.19 The Honorable Court declared in
l.itJt that "l!Jt is the VFA which gives continued relevance to the '.MDT
despite the passage of years." 20 In Artgo, the Honorable Court said that
"[t]he VFA [1s) a valid and binding agreement [and thatJ the parties are
required as a matter of international law to abide by its terms and
. .
"21
ptOVlSlOnS.
19. Consistent with the foregoing characterization, the President,
through the DND, entered into the EDCA to implement the policies and
treaty commitments embodied in the MDT and the VFA to advance the
security interests of the Philippines.
20.

In Bc!J'an) the Honorable Court declared-

(b]y 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 nation's foreign policy; his "dominance in the field of
foreign relations is ... conceded." Wielding vast powers and influence,
his conduct in the external affairs of the nation .. .is "c..'\'.ccutive
altogethet." 22

17

G.R. No. 138570, 10 October 2000.

G.R. No. 175888, 11 Febmary 2009.
19
G.R. No; 206510, 16 September 2014.
:m Lit11 v. Hxecutiw Sem:tc1~y, supra note 7 at 752.
21
Supra note 19 at 20.
22
Supra note. 17.
18

Consolidated Comment

G.R. Nos. 212444, 212426

.As the Chief Executive and architect of the nation's foreign policy, the
President, through rhe DND, negotiated and ratified the ED(',A to
implement existing treaty commitments under the MDT and the VF A. As
Commander-in.,.Chief23 and protector of the Filipino peoplc,24 the
President entered into the EDCA to uphold the security interests of the
Philippines.
21.
Prematurity and ttpeculations. The EDCA provides for
separate agreements to carry out specific activities such as joint exercises,
the prepositioning of materiel, or construction activities. Under the
EDCA, every instance of defense cooperation is subject to either existing
bilatentl mechanisms or the requirement of subsequent implementing
agreements. This arrangement is consistent with the \TFA because the
VFA requires approval for specific "activities" by the Philippine
Government. This arrangement serves as the individualized consent
mechanism in favor of the Philippines to approve "activities" before they
are undertaken within its territory.

22. For example, the "Agreed Locations'' under the EDCA will
be determined through mutual agreement, to be specified either through
an annex or implementing arrangement. 25 To date, the parties have not yet
finalized the list of Agreed Locations either through an annex or a
separate agreement.

23.

Authorization to preposition matctiel will be secured through

"bilateral security mechanisms, such as the MDB and SEB."26 The Mutual
Defense Board (MDB) and Secudty Engagement Board (SEB) are joint
bodies composed of military and diplomatic officials from the Philippines
and the US. The MDB coordinates the implementation of mutual defense
actions pursuant to the MDT,27 while the SEB focuses on non-traditio11al
security concerns, such as "terrorism, transnational crimes, maritime
security, and natural and man-made disasters."2S These institutions will be
23
24

25
26
27

CoNSTfl'UTION; 1\rt. VII, Sec. 18.

CONSTITUTION, Art. If, Sec. 3.

EDCA, Att. II, par.4.

EDCA, Art. IV, pat.1.

The MDB was created through the 1958 Bohlen-Serrano Exchange of Notes to provide
continuing inter-governmental machinery fot direct lfaison and consultation between
app1'opriatc Philippine and United States authorities on military matters of mutual concern
so as to develop and improve~ through continuing military cooperation, the common
defense of the two countries. The cteafion of the MDB was provided by the Mutual Defense
Treaty between the Philippines and the United States. It is co-chaired by the AFP Chief of
Staff
and
the
US
Pacific
Command
Commander.
See
http;/ /www.vfacom.ph/ content/article/FAQs.
28
Id. The SEB "vas created through the 2006 Romulo-Kenney Exchange of Notes to provide
a framework and mechanism for direct and continuing liaison and consultation on nontraditional security concerns such as, but not limited to: terrorism, tJ:ans11ational crimes,
maritime security and safety, natutal and man-made disasters, between the apptopriate

.....................

~~----------------C<.msoHdated Corpment

G.R. Nos. 212444, 212426

the venues for consultation and agreement as to the nature, quantity, and
disposition of materiel to be stored in Agreed Locations.
24. Petitioners speculate that the separate agreements under the
.EDCA will violate various Philippine laws and operate as a blank check to
broaden the coverage of the EDCA.29 These speculations cannot be the
basis of a constitutional challenge. In the first place, one has to assume
that these separate agreements will be consistent with the Constitution,
our laws, and international obligations, as is clearly stated in the EDCA.
ln the second place, whether these separate agreements will violate
Philippine laws or unlawfully expand the EDCA cannot be determined in
advance. This simply cannot be done because the EDCA has not yet been
implemented.
25. For a case to be considered tipe for adjudication, "[i]t is a
prerequisite that something had by then been accomplished or
pei-formed ... before a court may come into the picture." 30 The fact that
the EDCA provides for specific agreements to undertake defined
activities reinforces Philippine sovereignty because consent of the
Philippines is required before these activities are undcrtal~en within its
territory. This arrangement also shows that the ED('.,A is an implementing
agreement of the VFA, because it follows the framework of the VFA
requiring that any "activity" be approved by the Philippine Government.
ISSUE

\-x;'HETHER
THE
ENHANCED
DEFENSE
COOPERATION AGREEMENT IS UNCONSTITUTIONAL.
SUMMARY OF ARGUMENTS
I.

THE EDCA IS AN EXECUTIVE AGREEMENT

ENTERED INTO BY THE PRESIDENT IN THE
PERFORMANCE OF HIS PRIME DUTY TO
DEFEND NATIONAL SECURITY.

Philippine and United States authorities; develop measures and arrangements for enhanced
cooperation in connection therewith, and appropriate common security interests of the two
soveJ:eign countries. The SEB complements the MDB.
29
BAYANPetltion, p. 28-29.
1
'' Tan v. Mmupa,gal, G.R. Nos. L-34161, 29 February 1972.

Consolidated Comment

G.R. Nos. 212444, 212426

A. The President is Constitutionally Mandated

to Promote National Secudty Interests: The
President's Power to Maintain Peace and
Security.
B. Constitutional Law and the Practical
Considerations of this Case Require _
Deferential Review of Executive Decisions
over National Secudty.
C. The MDT, VFA, and EDCA are Security
Agreements.
II.

THE EDCA rs AN EXECUTIVE AGREEMENT' AND

THEREFORE DOES NOT REQUIRE SENATE
CONCURRENCE.
A. The EDCA Implements the MDT.
B. The EDCA Implements the VFA.
C. The VFA is the Standing Authority for
Activities Approved by the Philippine
Government Relating to Security Interests of
the Philippines and the United States.
D. The EDCA, as an Implementing Agreement,
Does Not Require Senate Concurrence.

III.

ASSORTED ISSUES RAISED BYTHE PETITIONS.

A. The MDT Cannot Be Collaterally Attacked;
Its Validity Has Already Been Judicially
Recognized in Lim and Nicolas.

B. The EDCA Does Not Authorize the Entry of

Nuclear Weapons Into the Philippines.
C. The EDCA Does Not Deprive Philippine
Courts ofJurisdiction.

Consolidated Comment

G.R. Nos. 212444, 212426

D. The EDCA Does Not Violate Constitutional

Policy and Existing Laws.
DISCUSSION

I.
THE EDCA IS AN EXECUTIVE AGREEMENT ENTERED
INTO BY THE PRESIDENT IN THE PERFORMANCE OF Hrs
PRIME DUTY TO DEFEND NATIONAL SECURITY.

A. The President is Constitutionally Mandated to Promote National

Security Interests: The President's Power to Maintain Peace and
Security.
26. The President, through the DND, entered into the EDCA to
perform his primaty constitutional duty to promote national security
interests. Under Article II, Section 4 of the Constitution, the President, as
head of State and chief representative of government, has the "prime duty
to serve and protect the people.'; The President is the Commandcr-inChief of the Armed r.:.'orccs of the Philippines, which is constitutionally
designated as "the protector of the people and the State."31 Article II,
Section 3 of the Constitution provides that "[tjhe goal [of the Armed
Forces of the Philippines] is to secure the sovereignty of the State and the
integrity of the national tettitory'' of the Philippines. The National
Defense Act provides that "[tJhe national defense policy of the
Philippines" is "the presetvation of the State."32 These are undisputed
constitutional and statutory grounding.
27. The President entered into the EDCA in the performance of
his highest constitutional duty, because he did so to protect the integrity
of the Philippine State.33 Under Article I of the EDCA, the goals of
improving interoperability between Philippine and US forces and the
defense capability of the AFP are meant to (1) '(maintain and develop
additional maritime security [and] maritime domain awareness" and (2) to
improve the ability to render humanitarian assistance and disaster relief or
HADR

11
32

CONSTlTUTfON, Art. II, Sec. 3.

C.A. No. 1, as amended, Sec. 2.

Tetritoq is an integral part of a State. Montevidec> Convention on the Rights and Duties
of States, 26 December t933, Art. L ''The state as a person of intetnat:ir>t1a1 law should
possess the following qualifications: a) a permanent population; b) a defined territory; c)
government; and d) capacity to enter .into relations with the other states."
33

Consolidated Comment

'

11

G.R. Nos. 212444, 212426

28. Thus, from the Philippine perspective, the objectives of the

ED.CA are twofold: (1) externally, to secure the territorial integrity of the
Philippine State and (2) internally, to improve the capability to render
HADR in light of emergencies or disasters that were recently experienced
by the countty. Both the external and internal aspects of the EDCA are
meant to advance the national security of the Philippines.
National security relates to "common defense ... the
preservation of the public peace as well as against the internal convulsions
as external attacks ... the superintendence of our intercourse, political. and
commercial, with foreign countrics.n3 4 National security necessarily
subsumes foreign relations when it involves the sovereignty of a State.
The security of the Philippines is envisioned to be advanced through the
EDCA's objective of "strengthen[ing] international and regional
security. n 3s
29.

30. Authority to Maintain Semrity and Prevent War. In Marcos v.

Manglaptts,3 6 the. Honorable Court rnled that "in making the President
commander-in-chief, the enumeration of powers that follow cannot be
said to exclude the President's exercising as Commander-in-Chief powers
short of the calling of the armed forces,. or suspending the privilege of the
writ of habeas corpus or declaring martial law, in order to keep the peace,
and maintain public order and security."37 Thus, the President's power as
Commander-in-Chief docs not become relevant only during an actual war.
As Commander-in-Chief, it is the President's duty to take preparatory and
preventive measures against potential and actual threats to national
security. 'fhis constitutional authority must be given the widest possible
breathing space in order that the President can select frotn a whole range
of possible actions.
31. The Hono1a.ble Court cannot decide the present case without
considering the intetnational platform of politics in which we currently
find ourselves situated. Recent events within Philippine territory
undoubtedly compromise the security of the Philippines. The Honorable
Cou1t should not render the Ptesident helpless or impair his ability to set
up a national security appamtus in the face of clear, present, and verified
reports of activities that endanger the integrity of the Philippine State.

32. As Chief Executive, Commander-in-Chief, and Chief

Architect of foreign policy, the President has the constitutional authority
and duty to enter into agreements for the defense of national territory and
~ 4 THE FEDERALIST No. 23 (Alexander Hamilton). See L. Donohue, The Limits of National

Sec11ri('j, 48Al\f. CRii\I.L REv.1573(2011),1576.

35
EDCA, Preamble.
36

:n

G.R. No. 88211, 15 September 1989.

Id.

...

Consolidated Comment

12

G.R.:Nos.212444,212426

maintenance of regional security. The breadth and scope of this

constitutional ~mthority is co-extensive with the nature of the dahgcr
apprehended by the President who has control over the national security
apparatus. The present conti:oversy is also cor1ccrned withsuch an authority plus the very delicate, plenary and exclusive
power of the President as the sole organ of the ... government in the
field of international relations-a power which docs not require as
basis for its exercise an act of Congress, but which of course, iike other
governmental power, must be e.xercised in subordination to the
applicable provisions of the Constitution.38

33. \Ve.invite the .Honorable Court to be mindful of the reality

that geopolitical concerns today involve transboundaries. 'Thus, the line
between domestic and regional or national and international issues is no
longer as easy to detnarcate. Thus, for instance, the enforcement of State
territory is not only achieved through clarity in international norms, but
crucially through tangible security and defense build-up measures
undertaken by states. Advances in technology have made the seas and
oceans a crucial component in defining territorial entitlements.
34. Article I of the EDCA provides that it is meant to address the
AFP's "short-term capabilities gaps, promoting long-tertn modernization,
and helping maintain and develop additional maritime security, marititne
domain awareness, and humanitarian assistance and disaster relief
capabilities."3 9 These, among others, are the security and defense
tneasures that the Philippines needs to achieve a minimum credible
defense
manifold security concerns in the West Philippine Sea.
:, ,

._

'

~"

I r1,.

~'

to_thp
i' ~
!!

--,~ -. ~-?~:');..

,;
..

A\rtidc IT, Section 7 of the Constitution provides that "ft]he

shall iJ'Ursue an independent foreign policy. In its relations with
other'' states the. paramount consideration shall be national sovereignty,
territorial integrity, national interest, and the right to self-determination."
Article XII, Section 2 of the Constitution provides that "[tJhe State shall
protect the nation's marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and preserve its use and enjoyment
exclusively to Filipino citizens.'; The Honorable Court must allow the
Pi:esident to protect our tnaritime entitlements. National security, through
the defense of national territory, invokes the highest duty of the President
and all Filipino citizens under the Constitution.

:;. .. State

36. Internal Secmi!JI throNgh HADR Another objective of the

EDCA addresses the internal security of the Philippines by improving the
ability to provide HADR, either through joint operations between
38

tJ.S~

.;?

EDCA, Art. I.

v. Ct1rtiJ:r-fFtighlExport Onp., 299 U.S. 304 (1.936), 320.

Consolidated Comment

13

G.R. :Nos.212444,212426

Philippine and US forces or through the AFP's own capacity which is

intended to be developed under the EDCJ\. 'TI1c countris experience
\vj.th"'rx?hoon Haiyan last November 2013 has made us acutely aware of
the heed to develop .HADR capability to provide immediate response to
disaster-stricken areas. Moreover, this experience underscores not only
the fact that disaster response reguires more than the immediate rescue of
sutvivors, but also that grave calamities require international effort.
37. Under the AFP Modernization Act, HADR is a key role of
the AFP, which is mandated to protect the people "not only from armed
threats but from the ill effects of life-threatening and destructive
C()nsequcnccs of natural and mat1-made disasters and calamities, including
typhoons, carthguakes, volcanic eruptions. " 40 The EDCA seeks, among
others, to enhance the AFP's HADR capabilities through the availability
of prepositioned materiel.

38. Even as the AFP continues to develop its disaster response

capabilities, the magnitude of some calamities may require response from
the international community. Close coordination and interoperability with
foreign forces, including units of the US, will be critical. For specific
HA.DR missions such as search and rescue and aid delivery, the capability
to immediately and seamlessly conduct joint operations may spell the
difference between life and death.

B. Constitutional Law and the Practical Considerations of this Case

Require Deferential Review of Executive Decisions Over National
Security.
39. In the J<'ederalist Papers, Alexander Hamilton said that
powers relating to common defense "ought to exist without litnitation,
because it is impossible to foresee or define the e.~tent and variety of

national exigencies, or the correspondent extent and variety of the

means which may be necessary to satisfy them."41 While the
Constitution has placed limits on any governmental act by imposing upon
the Judiciaty the duty to determine grave abuse of discretion, courts have
invariably maintained a deferential attitude to e;x:ccutive decisions on
matters of national securitv.
, 42
40. In any case, the e;x:erdse of the authority to uphold national
security has barely any limitations, for the President must be given the
40
41

"1

Republic Act 7898, Sec. 3(c).

Emphasis in the original, supra note 37,

David v. Macapa,gal-Arrqyo, G.R. Nq. 171396, 3 May 2006; IBP v. Zamora, G.R. No. 141284,
ivfanglapm~ Jttj>ra note 36.

15 August 2000; ,\1.mro.r v.

Consolidated Comment

14

G.ll. Nos. 212444, 212426

widest latitude in balancing the nation's limited options and calibrating his
responses to ensure their ma..'timum intended effect. In light of the reality
that the nuances of foreign policy and international relatfons are best left
to agencies and instrumentalities of government-all of whom under the
control of the President-with institutional capacity to plan and execute
the President's national defense policy, it stands to reason that courts
must approach this case with deference to a foreign policy decision
already made.
41. Judicial deference to decisions relating to national security is
also required by the principle of separation of powers. Consistent with
Hamilton's view, nonns articulated in a judicial decision may inadvertently
deprive the government of specific and graduated remedies to address
pressing national security concerns, because "it is impossible to foresee or
define the extent and variety of national exigencies." By constitutional
design, the Judiciary does not have the institutional capacity to appreciate
the severity and scope of a national security problem and the propriety of
the means to address it.

42. Lest we forget, the Judiciary also has the constitutional duty
to uphold national security and protect national territoty in the
performance of its judicial function. The Constitution imposes the duty to
protect and serve the people on the entire government of the
Philippines. 43 The National Defense Act provides that "[t]he pteservation
of the State is the obligation of every citizen."44 A necessary part of this
constitutional and statutory duty of the Judiciary is to exercise utmost
deference to the Executive when it undertakes national security measmes
to defend the security of the Republic.
C. The MDT, VFA and EDCA are Security Agreements.

43. The MDT, VFA and EDCA are security agreements. They
arc meant to promc.>te the common internal and external security interests
of the Philippines and the US. They were entered into by the President in
the performance of his prime duty to uphold the national security of the
Philippines.
44.

The. MDT provides that the parties desire to

"further ... strengthen their p1esent efforts to collective defense for the
preservation of peace and security pending the development of a more
comprehensive system of regional security in the Pacific Area." Article II
of the MDT states that "[i]n order to more effectively achieve the
43
<14

CONS'TITl.TflON, Art. II, Sec. 4.

C.A. No. 1, Section 2(a) .

......___________________!

.--------------------------------------

Consolidated Comment

15

G.R. No.s. 212444, 212426

objective of [the MD1], the Parties separately and jointly by self-help and
mutual aid will maintain and develop their individual and collective
capacity to resist atmed attack." Thus, the MD'f does not only
contemplate the defense against an actual armed attack, but the
undertaking of security measures to "maintain and develop ... individual
and collecdve capacity to resist atmed attack.')

45. The VFA expressly reaffirms the MDT. 45 While reaffirming

the purposes and principles of the Chatter of the United Nations (UN
Charter), the VFA provides that the parties "desire to strengthen
international and regional security in the Pacific area)' and that
"cooperation between the US and the Republic of the Philippines
p.tomotes their common security intercsts."46 The VFA is meant to allow
activities approved by the Philippine Government relating to individual
and common security interests of the Philippines and the US.
46. '!be EDCA reaffirms the MDT and the VFA. It .i:eiterates the
purpose of these prior agreements by providing that while the Philippines
and the US reaffirm the purposes and principles of the UN Charter, both
countries "desire to strengthen international and regional security." Article
I of the EDCA provides that it is intended to "deepen[ ] defense
cooperation between the Patties and maintain[ ] and develop( ] their
individual and collective capacities, in furtherance of Article II of the
MDT ... "

II.
THE EDCA IS AN EXECUTIVE AGREEMENT, AND
THEREFORE
DOES
NOT
REQUIRE
SENATE
CONCURRENCE.

47. Petitioners' arguments are anchored on their interpretation of

Aii:icle XVIII, Section 25 which, in their belief, either nullifies or limits
the application of the MDT or suspends the operation of the EDCA.
48. The EDCA explicitly provides that it is an implementing
agreement of the MDT and the VFAArticle. I
PURPOSE AND SCOPE
1.
This Agreement deepens defense cooperation between the
Parties and maintains and d~velops their individual and collective
capacities, in furtherance of Article II of the MDT, which states that
45
46

VF.A, Preamble.
VFA, Preamble.

Consolidated Comment

~,

'

16

G.R. Nos. 212444, 212426

"the Parties geparately and jointly by self-help and mutual aid will
maintain and develop their individual and collective capacity to resist
armed attack," and within the context of the VFA.

49. Under Article 31(1) of the Vienna Convention on the Law of

Treaties, "fa] treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose."

50. By its own express terms, the EDCA declates itself to be an

implementing agreement of the VF.A and the MDT and as such does not
require Senate concurrence to be "valid and effective." 47 'Thus, it is
difficult to maintain petitioners' contrary position because it is
contradicted by the text of the EDCA. The only way petitioners'
arguments will make sense is if we reject the plain reading of the language
of the text they seek to impugn.
51. As will be discussed below, the EDCA is nothing more than
an implementing agreement of the MD'T and the VFA not only by its
express declaration, but also by its purpose, scope and operative
provisions. In other words, while the EDCA is an important security
agreement, the necessary licenses or authorities for its operative
provisions are found in the general and specific language of either the
MDT or the VFA or both.

A. The EDCA Implements the MDT.

52. In entering into the MDT, the US and the Philippines seek,
among others, to "declare publicly and .formally their sense of unity and
their common determination to defend themselves against external armed
attack" and "further strengthen their present efforts to collective defense
for the presc.rvation of peace and security pending the development of a
more comprehensive system of regional security in the Pacific Area."48 To
achieve these objectives, the MDT provides~
ARTICLE II
In order more effectively to achieve the objective of this Treaty,
the Parries separately and jointly by self-help and mutual aid will
maintain and develop individual and collective capacity to resist armed
attack.

47

CONSTffUTION, Art. VII, Sec~ 21.

48

MDT, Preamble.

~----------------

--------

17

Consolidated Comment

G.R. Nos. 212444, 212426

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
tcrrito.tial integrity, political independence or security of either of the
Parties is threatened by external armed att-ack in the Pacific.

53. J\s the core defense relationship between the Philippines and
the US, the MD'f seeks the enhancement of the strategic and
technological capabilities of the parties' armed forccs. 49 The specific
language of Article II above includes acts preparatory to allied defense
operations. The language of the MDT does not limit its application to
situations when either party is alreacfy under armed attack. The objective of
the MDT, as stated in Article II, is to enhance the parties' capability to
prevent or resist a possible armed attack. The underlying idea behind the
MDT is the concept of mut-ual d~fense.

54.

This concept of mutual defense is carried over to the EDCA,

the purpose of which is to enhance defense cooperation. The purpose, scope
and operative provisions of the EDCA implement the MDT. Article I of
the EDCA provides that its purpose is the "furtherance of Article TI of
the MDT, which states that 'the Parties separately and jointly by self-help
and mutual aid will maintain and develop their individual and collective
capacity to resist armed attack.,,,

55. The purposes of the EDCA-to "[s]upport[ ] the Parties'

shared goal of improving interoperability of the Parties' forces, and for
the Am1ed Forces of the Philippines ("AFP"), [to address its] short-term
capabilities gaps, promoting long-term modernization, and helping
maintain and develop additional maritime security, maritime domain
awareness, and humanitarian assistance and disaster relief capabilities"50_
properly fall within the MDT's objective of developing the defense
capabilities of the Philippines and the US. The EDCA implements the
l\i1DT by providing for a mechanism that promotes optimal cooperation
between the US and the Philippines.

B. The EDCA Implements the VFA.

56. The_ purpose, scope and operative provisions of the EDCA
implement the VF.A. The EDCA follows the VFA by requiring that
activities (whether in relation to troops or facilities) to be undertaken in the
Philippines be approved by the Philippine Government. This consent
mechanism ensures that the best interests of the country are protected
49
50

Lim 11 .Executive Secrett11)1, slfpra note 7, 21.

EDCJ\, Article I(l)(a).

Consolidated Comment

18

G.R. Nos. 212444, 212426

because activities are approved by the Philippine Government on a per

case basis \virhin the framework of the MDT, VFA and EDCA.
57. .Article I of the EDCA provides that its purposes are to
support "the Patties' shared goal of improving interoperability of the
Parties' forces, and for the Armed Forces of the Philippines ("AFP"), [to
address its] short-term capabilities gaps, promoting long-tenn
modernization, and helping maintain and develop additional maritime
security, ma.titime domain awareness, and humanitarian assistance and
disaster relief capabilities.'' The Honorable Court in Un1 ruled that these
activities are already covered by the VFA. Under Lim, "maritime secudty,
mai"itime domain awareness, and humanitarian assistance and disaster
telief capabilities" are "activities" that are authorized to be undertaken in
the Philippines under the VFA.
58. Article II of the EDCA reiterates the definition of "United
States personnel" in the VFA which means "United States miJitary and
civilian personnel temporarily in the Philippines in connection with
activities approved by the Philippines."

59. Article III of the EDCA provides for the "Agreed Locations"
where the Philippines authorizes US forces and contractors to "conduct
the following activities": 51
"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."52
60.
Article IV of the EDCA authorizes the prepositioning and
storing of defense equipment, supplies and materiel. Under Artide IV in
relation to Article III of the EDCA> the prepositioning of equipment,
supplies and materiel" is an "activiti' to be approved by the Philippine
Government "through bilateral security mechanisms, such as the MDB
and SEB."53 Article IV of the EDCA further states that "[t]he Parties
share a recognition of the benefits that such prepositioning could have for
humanitarian assistance and disaster relief. 'The Parties also recognize the
value of such prepositioning to the enhancement of their individual and
collective defense capabilities." This again shows that the EDCA
reiterates the MDT, as implemented by the VFA.

51

Emphasis supplied.
Emphasis supplied.
53
EDCA, A1ticle IV.
52

r-

------

------

Consolidated Comment

...
\

19

G.R. Nos. 212444, 212426

C. The VFA is the Standing Atithority for Activities Approved By

the Philippine Government Rel\\ting to Security Interests of the

,..

"'"

Pl-iilippines and the United States.

61. The Honorable Court ruled in Um and Nicolas that the VFA
is an implementing agreement of the MDT. As such, the VFA is not only
intended for the entry of US troops in Philippine territory, but is an
agreement with respect to "activities" regarding troops and facilities
within the Philippines. In other words, the VFA permits '~activities"
within Philippine tetritory, as approved by the Philippine Government,
consistent with the broad security undertakings under the MDT.
62. The contention that the VFA is only an agreement relating to
troops is textually negated by .Article VII of the VFA54 which stipulates
that "United States Government equipment, materials, supplies, and otheipropetty .. .in the Philippines .. .in connection with activities to which
[the VFA] applies"55 may be imported or exported. Aiticle VII of the
VFA. is explicit that the VFA relates to the entry or removal of US
facilities "in connection with activities to which [the VFA] applies."
63. Article VIII of the VFA also allo"vs the entry of such facilities
as vehicles, vessels and aircraft in Philippine territo1-y. In line with the
nature of the VF A as the undertaking of "activities," the entry of aircraft
and vessels in the Philippines requires the approval of the Philippine
Government.

54

VFA, Article VU (Importation and Exportation). 1. United States Govemment e<1uipment,

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 titne, free from expol't duties, taxes, and other similar charges. The
C..'\emptions prodded in this paragraph shall also extend to any duty, tax, ot other similar
charges whicb would othetwise be assessed upon such property afte.r 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 trotn applicable taxes and duties shall be subject to
payment of such taxes, and duties and prior approval of the Philippine Govemment.
2. Reasonable quantities of personal bagi,,:rage; personal effects, and other property for the
personal use of United States persot111el may be imported into and used in the Philippines
free of all dt1ties, taxes and other sitnila.r charges during the period of their temporary stay in
the Philippines. Transfers to persolls or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of the apptopriate Philippine authorities
including payment by the recipient of applicable duties and taxes imposed in accordance
with the laws of the Philippines. The expo.ttatfo11 of sucb property and of property acquired
in the Philippines by United States personnel shall be free of all Philippine duties, taxes, and
other similar chatgcs.
55
Emphasis supplieq.

Consolidated Comment

20

G.R. Nos. 212444, 212426

64. 'The primary concept of "activities" under the VEA serves as

tbe operative license for allowing troops and facilities. This is evident both
in the te.'Xt of the VFA and the decision in Lim. Article I of the VPA
defines 'Tnited States personnel as "United States military and civilian
personnel temporarily in the Philippines in connection with activities
approved by the Philippine Government." Article II of the VFA states
that "[i]t 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 ... "
65. Three decisions of the Honorable Court serve to clarify the
nature of the VFA: BAYAN, Lim and Nicolas. While BAY.AN and Nicolas
dealt \vith the applicability of the requirement that the VFA must be
"recognized as a tt:eaty" by the US under Article VIII, Section 25 of the
Constitution,56 Lim explained the natttte of the VFA when it ruled in
favor of the validity of the Balikatan e,..'\;;ercises of Philippine and US troops
in Basilan and Mindanao.
66. \Vhcreas BAYAN and Nicolas dealt with the procedural
requirements under Article VIII, Section 25 of the Constitution, Um
involved the substantive interpretation of the provisions of the VFA,
using the interpretive methods under the Vienna Convention on the Law
of Treaties. The Honorable Court in Lim said that "[t]he VFA pet:mits
United States personnel to engage, on an impermanent basis, in
'activities/ the exact meaning of which was left undefined." The
Honorable Court ruled thatAfter 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
mannet, visiting US forces may sojourn in Philippine territory fot
purposes other than military. i\.s conceived, the joiflt C.'Cetcises 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. 57

After the expiration in 1991 of the Agreement bet'l,veen the Republic of the Philippines and
the United States of America concerning military bases, foreign military bases, troops, 01
facilities shall not be allowed in the Philippines except under a treaty duly concurred in by
the Senate tmd, when the Congt:ess so ret1uites, ratified by a majority of the \rotes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the
other contracting State.
57
Emphasis supplied. Supm note 7 at 755.
;6

Consolidated Comm.cot

21

G.R. Nos. 212444, 212426

67. Li1JJ ruled that the teim "activities" under the VFA is broad
enough to include "patrol and surveillance to protect the nation's marine
resources," "sea search-and-rescue operations" and "disaster relief
operations" - activities that are covered by the EDCA. These activities
necessarily involve the entry and operation of US facilities within
Philippine territory.
68. The "activities'' under the VFA are meant to "strengthen
international and regional security in the Pacific area" and to promote the
"common security interests" between the US and the Philippines. Thus,
the '\i.ctivities" under the 'lFA relate to individual and common security
interests of both countries. This is because the VF A, by its own terms,
implements the MDT which is intended, among others, to "maintain and
develop [the Pa1:ties'] individual and collective cap~city to resist armed
attack."
69. The MDI' is expressed in general terms and cannot be
enforced by its own terms. By necessity, the language of both the MDT
and the VFA (and to some extent the EDCA) must be couched in general
terms considering that these are security agreements. It would be the
height of naivete to constitutionally require that any of these agreements
be articulated at the level of granular details. Both the generality of the
language and the consent mechanisms in the documents are themselves
security features that sei\re to protect our national interests.
70. At the same time, the MDT must necessarily be implemented
by subsequent agreements between the Philippines and the US such as the
VFA and the EDCA. Lim said that "li]t is the VFA which gives continued
relevance to the MDT despite the passage of years." Nicolas ruled that the
VFA is "an implementing agreement of the RP-US Mutual Defense
Treaty, [and] it was not necessary to submit the VFA to the US Senate for
advice and consent ... "

D. The EDCA," as an Implementing Agreement, Does Not Require

Senate Concurrence.

71. The EDCA does .not require Senate concurrence under

Article XVIII, Section 25 of the Constitution because it is an
implementing agreement of the MDT and the VFA. The MDT and the
VFJ\ are valid and subsisting international agreements, and already allow
the entry of US troops and facilities in the Philippines under Article
XVIII, Section 25 of the Constitution. The provisions of the EDCA are
entirely covered by these prior agreements. A Senate concurrence to the
EDCA is a legal superfluity.

Consolidated Comment

22

G.R. Nos. 212444, 212426

72. ln Commissioner of Ct1stoms v. Eastern Sea Tt'tlding,ss the

Honorable Court adopted the following distinction between a treaty,
which requires Senate concmrence, and an executive agreement, which
does not:
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.

International agreements involving political issues or changes of

national policy and those involving international arrangements of a
permanent character usually take the form of treaties. Hut international
agreements embodying ar!justment.r of detail cartying out well-established
national policies and traditions and those involving arrangements of a
more or less tempora1J' nature usually take the form of executive
agreements. 09

73. The EDCA is an implementing agreement of the MDT and

the VF.A because it involves "adjustments of detail" to carry-out the
security policies in the MDT and the VFA, which are necessarily couched
in general tc.rms. The EDCA fmther articulates the authorized activities to
cany out the objectives of th,e MDT and the VFA-the use of Agreed
Locations, prepositioning of materiel, and construction of improvements.
\Vhat the EDCA docs is to enhance the existing contractual security
apparatus between the Philippines and the US, set up thrmtgh the MDT
and the VFA. It is the duty of the Honorable Court to allow this security
apparatus enough breathing space to respond to perceived, anticipated,
and actual cx:ige1~cies.

74.

The EDCA is wholly consistent with the MDT and the VFA

because it simply reiterates the material p.mvisions of the MDT and the
VFA Vvith accompanying adjustments in detail such as the prepositioning
of equipment (Article IV), disaster relief operations (Article I and IV),
utilities and communications in the agreed locations (Article Vll), and
safeguards for the environment and human health (Article IX).

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

59

Italics in the original. Id. at 356.

....

-------------------------------------..,
Consolidated Comment

23

G.R. Nos. 212444, 212426

III.
ASSORTED ISSUES RAISED BY THE PETITIONS

A. The MDT Cannot Be Collaterally Attacked; Its Validity Has

Already Been Judicially Recognized in Lim and M'colas.
75. The Sa,_guisag Petition argues that the EDCA cannot
implement the MDT' on the ground that "it cannot further a treaty that is
both unconstitutional and contrary to the intents and purposes of the UN
Charter.''60 This argument is based on Article II, Section 2 of the
Constitution which provides that "[t]he Philippines renounces war as an
instrument of national policy" and Article 2(4) of the UN Charter which
provides that "[a]ll 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."
7 6. It must be noted that the prayer in the S aguisag Petition docs
not seek to annul or set aside the MDT. The relief prayed for is limited to
declaring the EDCA unconstitutional and prohibiting its implementation.
Petitioners' argument therefo17e. constitutes a collateral attack on the
MDT. An attack is indirect or collateral when, in an action to obtain a
different relief, an attack on another ptoceeding is made as an incident
thereof. 61 In conr.rast~ an attack is direct when the object of an action is to
annul or set aside such proceeding or enjoin its enfotccmcnt.62
77. The validity of the MDT has been consistently recognized by
the T-Ionorable Court in BAY.Al'!, Um and Nicolas. In Lim, the Honorable
Court declared that the MDT is "a valid source ()f international
obligation" and is consistent with Article II, Section 2 of the Constitution
which "renounces war as aninsttument of national policy''In our considered opinion, neither the MDT nor the Vl1A allow
foreign troops tQ engage in an offensive war on Philippine territory.
We bear in mind the salutary ptoscription stated in the Charter of the
United Nations, to \Vit:
Article 2

The Organization and its Members, in pursuit of the

Purposes stated in Article 1, shnll act ih accordance with
the f~llowing Principles.
xxx
xxx
xxx
61
'
61

G.R. No. 212426, p.2.3.

See Firazf1 v. Sp()tLres C!andio, G.R. No.165838, 03 April 2013.
62
ld.

24

Consolidated Comment

G.R. Nos. 212444, 212426

4.
All Members shall refrain in their international
relations from the threat or use of force agairtst the
territorial integrity or political independence of any state,
or in any other manner inconsistent with the Purposes of
the United Nations.
xxx
xxx
xxx
In the same manner, both the Mutual Defense Treaty and the
Visiting Forces Agreement, as h1 all other treaties and international
agreements to which the Philippines is a party, must be read in the
context of the 1987 Constitution. In particular, the Mutual Defense
Treaty was concluded way before the present Charter, though it

nevertheless remains in effect as a valid soutce of international

obligation. The present Constitution contains key provisions useful in
determining the e.xtcnt to which foreign military troops are allowed in
Philippine territory. Thus, in the Declatatkm of Principles and State
Policies, it is provided that:
xxx

xxx

xxx

SI~C. 2. The Philippines renounces war as an instrument

of national policy, adopts the generally accepted
principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.

xxx

xxx

xxx

SEC. 7. The State shall pursue an independent foreign

policy. In its relations with other states the paramount
consideration shall be national sovereignty, territorial
integrity, national interest, and the right to sclfdctcrmination.
SEC. 8. The Philippines, consistent with the national
interest, adopts and pursues a policy of freedom from
nudea1 weapons in the countty.63

78. A collateral attack on a presumably valid law is not allowed. 64

Thete is a legal presumption of validity of these laws and rules. Unless a
law or rule is annulled in a direct proceeding, the legal presumption of its
validity stands. 65 In Arigo, the .Honorable Court ruled that petitioners
(some of whom are also petitioners in this case) cannot collaterally
challenge the VF.A through a petition for a \X?rit of Ka!ikc1san.

79. In any case, it is simply false to argue that the MDT "adopts
war as instrument of national policy." The MDT is meant for the
6; Emphasis supplied. S11pr1111ote 7.
64
Da.w1atiiitl.r f.F?(lfer Di.rtrict v. M.onteny .Foods Co!j;oration, G.R. No. 175550, 17 September 2008.

eu

Consolidated Comment

25

G.R. Nos. 212444, 212426

Philippines and the US to ''maintain and develop their individual and

collective capacity to resist armed attack." Thus, the purpose of the lVIDT
is the development of defense capabilities of both countries consistent
with the UN Charter and the constitutional duty to protect the integrity
and security of the State. Article 51 of the UN Charter recognizes the
"inherent right of individual and collective self-defense" of states. The
MDT provides for the self-defense of states or their capacity to resist
armed attack. Contrary to the Saguisag Petition, there is nothing in the
MDT which authorizes the Philippines or the US to initiate the use of
force or wage war with other countries.

B. The EDCA Does Not Authorize the Entry of Nuclear Weapons

Into the Philippines.
80.
The EDCA does not violate the "policy of freedom from
nuclear weapons" under Article II, Section 8 of the Constitution. Article
IV, paragraph 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 SEI3.
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, paragraph 1 of the EDCA providesThe Philippines hereby authorizes United States forces, through
bilatetal security mechanisms, such as the MDB and SEB, to
preposition and sto.re 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
regai:ding 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.

81. The argument that Article IV, paragraph 1 of the EDCA only
applies to prepositioned materiel and would not bar the entry of US
vessels and aircraft carrying nuclea.t weapons is specious and contradicted
by the express pwvisions of the EDCA. The EDCA is premised on "full
respect for the Philippine Constitution ~t:nd Philippine laws"66 and the
parties' obligations under international conventions against chemical and
biological weapons.
82. Activities involving the entry of vessels and aircraft will
rec1uire the approval of the Philippine Government. Such approval is

66

EDCA, Preamble.

Consolidated Comment

26

G.R. Nos. 212444, 212426

circumscribed by a "policy of freedom from nuclear weapons" under

Article II, Section 8 of the Constitution.
83. Article IX, paragraph 1 of the EDCA expressly provides that
"[t]he Parties recognize and acknowledge the importance of protection of
the environment and human health and safety in the context of activities
covered by this Agreement and agtee to implement this Agreement in a
manner consistent with the protection of the natural environment and
human health and safety .. .>' Article IX, paragraph 2 also states that "[t]he
United States confirms its intent to respect relevant Philippine
environmental, health, and safety laws, regulations, and standards in the
execution of its policies."

C. The EDCA Docs Not Deprive Philippine Courts of Jurisdiction.

84. The BAY.AN Petition argues that the EDCA, in providing a
dispute settlement mechanism in Article XI, deprives the Supreme Court
of its jurisdiction under the Constitution. 07 Article XI of the EDCA
provides:
RESOLUTION OF DISPUTES
The Parties agree to resolve any dispute arising under this
Agreement exclusively through consultation between the Parties.
Disputes and other matters subject to consultation under this
Agreement shall not be referred to any nationa.l or international coutt,
tribunal, or other similar body, or to f.lny third party for settlement,
unless othe1wise agreed by the parties.

85. Under Article VIII, Sectioh 5 of the Constitution, the

Supreme Court has jurisdiction to determine the constitutionality of an
international agreement under Philippine law. However, the Honorable
Court does not have the jurisdiction to settle disputes between states.
Any dispute settlement mechanism between states is subject to their
consem undei: international law.

D. The EDCA Does Not Violate Constitutional Policy and Existing

Laws.
86. Petitioners maintain that the prov1s1ons of the EDCA are
contrary to certain policy pronouncements in the Constitution. Petitioners
also maintain that the EDCA violates the Labor Code, the National

67

13AY:AN Petition, p. 40-43.

Consolidated Comment

27

G.R. Nos. 212444, 212426

Internal Revenue Code, the Local Government Code, and the National
Building Code, among others.

87. Two reasons should sweep aside petitioners' assorted

objections to the EDCA88. First, 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 withinits territory. It is inherent in statehood,
and a functional requirement in international relations, that a state's 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 it1 international law is that a foreign armed forces
allowed to enter one's territory is immune from local jurisdiction,
except to the extent agreed upon. The Status of Fo1-ces 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, t'.e., the
receiving State can exercise jurisdiction over the fot-ces of the sending
State only to the exteilt agreed upon by the parties.t>s

89. The Supreme Court in Bqyan recognized that states may

concede aspects of sovereignty through an agreement:
By their nature, treaties and intctnational agreements actually
have a limith1g effect on the othet\vise encompassing and absolute
nature of sovereignty. By theit voluntary act, nations may decide to
surrender or waive some aspects of their state power or agree to limit
the exercise of their otherwise exclusive and absolute jurisdiction. The
usual underlying consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal undertaking of one
contracting part-y to grant the same privileges or immunities to the
other. On the rationale that the Philippines has adopted the gene1"ally
accepted principles of international law as pru:t: of the law of the land, a
portion of sovereignty may be wab.red without violating the
Constitution. Such \Vaiver docs not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts. 69

90. 'I11e.EDCA simply restates whatis already a given. Under the

MDT, as implemented by the VFA> US troops and facilities may enter
Philippine territ01y. Without the consent of the US, petitioners cannot
insist on the application of the country's taxes, labor laws and building
codes.

68

Nicolas v. Romulo, citing DIETER FI.ECK, ED., THE }L\NDBOOK OF THE LAW OF VISITING

FORCES (2001).

69 B/:l}'/'L\1 v. Rom1Jlo, s11pra note 17.

-- -----------,-.-,.--~---..,..----,...-------------------.

Consolidated Comment

28

G,R. Nos. 212444, 212426

91. Second; the policy provisions in the Constitution relied on by

petitioners, such as Sections 9,7o 10,71 1572 and 1873 of Article II are not
self-executing. 'The Honorable Court has already ruled in Tanada v.
Angara74 that the principles in Article TI of the Constitution "are not
intended to be self-executing principles ready for enforcement through
the courts. They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its
enactment of laws. "75 They cannot t,>-ive rise to a cause of action due to
"ha.sic considerations of due process and the lack of judicial authority to
wade 'into the uncharted ocean of social and economic policy making."'76
These provision_s require implementing legislation, and petitioners cannot
use the broad declarations of the Constitution as basis for a cause of
action.

PRAYER
\XlHEREFORE, it is respectfully prayed that:

1) The application for a 'I'emporary Restraining Order and/ or Writ

of Preliminaiy Infunction be DENIED; and
2) The petitions be DISMISSED for LACK OF MERIT.
Respondents pray for other just and equitable reliefs under the
premises.
Manila, 10 October 2014.

1-0 111c State shall promote a just and dynamic social order that will ensure the prosperity and
independence of the nation and free the people from poverty through policies that provide
adequate social services, promote full employment, a rising standard of living, and an
improved quality of life for all.
" The State shall promote social justice in all phases of national development.
12 The State shall protect and promote the right to health of the people and instill health
consciousness among them.
15 The State affirms labor as a primru:y social economic force. It shall protect the rights of
workers and promote their welfare.
74
G.R. No. 118295, 02 May 1997.
5
" See a/s(I Kilosbt!Jan v..Morato, G.R. No. 118910, 17 July 1995; Basco v. PAGCOR, G.R. No.
91649, 14 Mav 1991.
7
" Taiiada v. A~gara, G.R. No. 118295, 02May1997.

Consolidated Comment

29

G.R. Nos. 212444, 212426

OFFICE OF THE SOLICITOR GENERAL

134 Amorso1o St., Legaspi Village
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Tel. No.: 8186301 to 09 (frunklinc)
Fax No.: 8176037
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Email: docket@osg.gov.ph

Victing S oficitor G ne-ral

Roll No. 44957
IBP Lifetime No. 08505
MCLE Exemption No. IV-001068, 5-14-13

EM~!s'.~z

Associate Solicitor
Roll No. 56 723
IBP No. 953502, 01-08-14
MCLE Compliance No. lV-0010542, 12-20-12

Roll No. 59301

IBP Lifetime No. 012977
MCLE Compliance No. N/A

MARIAG
As. ociate Solicitor
Roll No. 61899
IBP No. 954310, 1-9-14
MCLE Compliance No. N/A

G.R. Nos. 212444, 212426

30

Consolidated Comment

JOHN DAL

'JJ.

BALLINAN

Asso
Solicitor
Roll No. 56727
IBP Lifetime No. 08853
MCLE Compliance No. IV-0009117

Associate Solicitor
Roll No. 56809
IBP Lifetime No. 08851
MCLE Compliance No. IV-0009116

fv~~ MELBOURNE D. PANA

Associate S oli'dtor
Roll No. 61900
IBP No. 954309, 1-9-14
MCLE Compliance No. N/A

RAMON

ANT~ANDAN

Associate Solicitor
Roll No. 63042
IBP No. 96846, 04-15-14
MCLE Compliance No. N/A

LIWAY;;,:.!!rRUIZO
Roll No. 63351
IBP No. 967967, 03-31-14
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Copy Furnished:

HARRY L. ROQUE
ROMMEL R. BAGARES
ETHEL C. AVISADO
Roque & Butuyan Law Offices
C:ounselfor Petiti1Jners i11 G.R. No. 212426
1904 Antcl Corporate Center
121 Valcm St., Salcedo Village
Makati City

RACHEL F. PASTORES
AMYLYN B. SATO
FRANCIS ANTHONY P. PRINCIPE
SANDRA JILL S. SANTOS
CARLOS A. MONTE;MAYOR, JR.
Public Interest law Center
Counsel.for Petitioners in G.R. No. 212444
4/F Kajia Bldg., 7836 Makati .:\venue

Executive Secretaty
OCHOA, JR.

PAQUITO

N.

Office of the Prc$idcnt, Mala:cafian

Manila

Secretary VOLTAIRE GAZMIN

Department of National Defense
DND Bldg., Segundo Avenue
Camp Genetal Einilio Aguinaldo, Quezon

City

Secretary ALBERT DEL ROSARIO

Department <Foreign Affairs
D FA Bldg., Roxas Blvd., Pasay City

Secretary FLORENCIO ABAD

Department of Budget and Management
J.P. Laurel S.r. St., Malatanan Palace, Manila

MARJA KRISTINA C. CONTI

MANEEKA ASISTOL SARZA
National Union of People's Lawyers
Cr11mse!for Petitioners in C.R. i'\To. 212444
3 /F Erythrina Building
No. 1 Matatag cm. Maaralin Sts.
Cc11t1:al Disttict, Quc:r.on City

REMEGIO D. SALADERO, JR.

NOELV.NERI
VICENTE JAIME M. TOPACIO
Pro-Labor Legal Assistance Center
Counselfar Pelitioners-in-I11tero1111tiot1
No. 3j-B E. Rodriguez Sr. Avenue, Quezon

General EMMANUEL T. BAUTISTA

Office of the Chief of Staff, Armed Forces
of the Philippines
DND Bldg., Segundo Avenue
Camp General Emilio Aguinaldo, Quezon
City
Justice Undersecretary
BARAANIII

FRANCISCO

Department of Justice
Padre Faura St., Legaspi Village
Makati City

City

PIO LORENZO BATINO

RENE A. V. SAGUISAG, SR.
Co1mse~/or Putitioner-in-fJttervention
4045 Bigasat1 St., Palartan
1235 Makati

Defense Undersecretary

RAYMOND JOSE QUILOP

DND Asst. Secretary for Strategic
Assessments
DND Bldg., Segundo Avenue
Camp General Emilio Aguinaldo, Quezon

City
Ambassador LOURDES
YPARRAGUlRRE
DFA Bldg., 2330 Roxas Blvd., Pasay City
Ambassador J. EDUARDO MALAYA
DFA Bldg., 2330 Roxas Blvd., Pasay City

.!

coNSOLlDATED COMMEN'f
Page 32of32

EXPLA.NA'flON
(Pursuant to Rule 13, Section 11 of the
1997 Rules of Civil Procedure)
111is Cl)nsolidated Comnw1t is being served by register.cd mail clue to lack of sufficient
personnel in the Office of the Solicitor Gt--i1ctal to effect personal service.

RAMON~NDAN.
Associate S o!idtor