Bayan v. Zamora, G.R. No.

138570, October 10, 2000

DECISION
(En Banc)
BUENA, J.:
I.

THE FACTS

The Republic of the Philippines and the United States of America entered into an agreement
called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine
government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the
total membership of the Philippine Senate.
The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It
provides for the guidelines to govern such visits, and further defines the rights of the U.S. and the
Philippine governments in the matter of criminal jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials and supplies.
Petitioners argued, inter alia, that the VFA violates 25, Article XVIII of the 1987 Constitution,
which provides that foreign military bases, troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other
contracting State.
II.

THE ISSUE
Was the VFA unconstitutional?

III. THE RULING

[The Court DISMISSED the consolidated petitions, held that the petitioners did not commit
grave abuse of discretion, and sustained the constitutionality of the VFA.]
NO, the VFA is not unconstitutional.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty
must be duly concurred in by the Senate and, when so required by congress, ratified by a majority
of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the
other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions
of the Constitution . . . the provision in [in 25, Article XVIII] requiring ratification by a majority of the
votes cast in a national referendum being unnecessary since Congress has not required it.
xxx

xxx

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This Court is of the firm view that the phrase recognized as a treaty means that the other
contracting party accepts or acknowledges the agreement as a treaty. To require the other

contracting state, the United States of America in this case, to submit the VFA to the United States
Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the sense they have in common
use.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty. To be
sure, as long as the VFA possesses the elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.
xxx

xxx

xxx

The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to the terms
of the VFA. For as long as the United States of America accepts or acknowledges the VFA as a
treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.

Lance Corporal Daniel Smith, member of the US Armed Forces, was found guilty beyond reasonable
doubt of the crime of rape in the RTC of Makati. The court ordered Smith detained at the Makati City
Jail until further orders.
On December 19 and 22, 2006, Philippine Foreign Affairs Secretary Alberto Romulo and US Ambassador
Kristie Kenney executed agreements that pursuant to the VFA, Smith be returned to the US military
custody and be detained at the first floor, Rowe Building, US Embassy Compound.
Petitioner Jovito Salonga, et al. challenged the validity of the said agreements contending that the
Philippines should have custody of Smith because, first of all, the VFA is void and unconstitutional since
it violates Art. XVlll, Sec. 25 of the constitution.
Is the VFA constitutional? Granting that it is constitutional, Are the Romulo-Kenney Agreements in
accordance with the provisions of the VFA itself?

SUGGESTED ANSWER:
The SC ruled The Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United
States, entered into on February 10, 1998, is constitutional, but the Romulo-Kenney Agreements of
December 19 and 22, 2006 are DECLARED not in accordance with the VFA.
VFA is Constitutional
The SC ruled that the VFA was duly concurred in by the Philippine Senate and has been recognized as a
treaty by the United States, and the fact that (it) was not submitted for advice and consent of the United
States does not detract from its status as a binding international agreement or treaty recognized by the said
State.

Section 25, Article XVIII, 1987 Constitution provides that foreign military bases, troops, or facilities shall not
be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State.
The issue, the Court said, is whether or not the presence of the US Armed Forces in Philippine territory
pursuant to the VFA is allowed under a treaty duly concurred in by the Senate and recognized as a treaty by
the other contracting State. It is, the Court ruled. The VFA, which is the instrument agreed upon to
provide for the joint RP-US military exercises, is simply an implementing agreement to the main RP-US
Mutual Defense Treaty, the Court held. visit fellester.blogspot.com The RP-US Mutual Defense Treaty of
August 30, 1951 was signed and duly ratified with the concurrence of both the Philippine Senate and the
United States Senate.

Romulo-Kenney Agreements not in accord with the VFA itself

The Court however ruled that the Romulo-Kenney Agreements of December 19 and 22, 2006, which are
agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA
itself because such detention is not by Philippine authorities. Article V, Section 10 of the VFA provides that
the confinement or detention by Philippine authorities of the United States personnel shall be carried out in
facilities agreed on by appropriate Philippines and United States authorities. (Suzette Nicolas y Sombilon
Vs. Alberto Romulo, G.R. No. 175888, February 11, 2009)

DISSENTING OPINION
In his dissent, Chief Justice Puno maintained his view in the earlier case of Bayan v. Zamora that the VFA
falls short of the requirement set by Sec. 25, Art. XVIII, 1987 Constitution, which provides that the
agreement allowing the presence of foreign military troops in the Philippines must be recognized as a
treaty by the other contracting state. For the Chief Justice, the majority of the Court in Bayan v. Zamora
gave undue deference to the statement of former US Ambassador Thomas Hubbard that US Senate advice
and consent was not needed to consider a treaty binding on the US, then jumped to the conclusion that the
US recognized the VFA as a treaty, and that the constitutional requirements had been satisfied. (Suzette
Nicolas y Sombilon Vs. Alberto Romulo, G.R. No. 175888, February 11, 2009)

Pimentel, Jr. vs. EXECUTIVE SECRETARY 462

SCRA 622
July 11, 2009 at 10:32 am (1)
FACTS :
The Rome Statute established the International Criminal Court which shall have the power to exercise
its jurisdition over persons for the most serious crimes of international concern xxx and shall be
complementary to the national criminal jurisdictions. Its jurisdiction covers the crime of genocide,
crimes against humanity, war crimes and the crime of aggression as defined in the Statute. The

Philippines signed the Statute on December 28, 2000. Its provisions, however, require that it be
subject to ratification, acceptance or approval of the signatory states.
Hence this petition for mandamus filed by petitioners to compel the Office of the Executive Secretary
and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the
International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Sec.
21, Art. VII of the 1987 Philippine Constitution.
Petitioners contend that ratification of a treaty, under domestic law and international law, is a function
of the Senate and it is the duty of the executive department to transmit the signed copy of the Rome
Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties.
Respondents, however argue that it has no duty to transmit the copy of Rome Statute to Senate for
concurrence.
ISSUE : Whether or not the Executive Secretary and the DFA have a ministerial duty to transmit to the
Senate the copy of the Rome Statute.
RULING :
Petition is dismissed.
In our system of government, the President, being the head of the state, is regarded as the sole organ
and authority in external relations and is the countrys sole representative with foreign nations. As
chief architect of foreign policy, the President acts as the countrys mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and
otherwise transact business of foreign relations. In the realm of treaty-making, the President has the
sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides for a limitation to his power by requiring the concurrence of 2/3 votes of all the
members of the Senate for the validity of the treaty entered into by him. The participation of the
legislative branch in the treaty-making process was deemed essential to provide a check on the
executive in the field of foreign relations.
Petitioners equate signing of the treaty with ratification, which are two different and distinct steps in
the treaty-making process. Signature is primarily intended as a means of authenticating the instrument

and as a symbol of good faith of the parties. Ratification, the other hand, is a formal act, executive by
nature, undertaken by the head of the state or of the government.
The signature does not signify the final consent of the state to the treaty. It is ratification that binds the
state to the provisions thereof. Under our Constitution, the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate is limited only to giving or withholding
its consent, or concurrence to the ratification. Such power of the President cannot be encroached by
the courts via mandamus and the courts has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties. Therefore, the Court cannot issue a writ of
mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch
of the government to transmit the signed text of Rome Statute to Senate.
About the

China National Machinery v. Santamaria

Facts: On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG), represented by its
chairperson, Ren Hongbin, entered into a Memorandum of Understanding with the North Luzon Railways Corporation (Northrail),
represented by its president, Jose L. Cortes, Jr. for the conduct of a feasibility study on a possible railway line from Manila to San
Fernando, La Union (the Northrail Project).
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of the Philippines (DOF)
entered into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to extend Preferential Buyers Credit to the
Philippine government to finance the Northrail Project. 3 The Chinese government designated EXIM Bank as the lender, while the
Philippine government named the DOF as the borrower. Under the Aug 30 MOU, EXIM Bank agreed to extend an amount not
exceeding USD 400,000,000 in favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3% per
annum.
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a letter to DOF Secretary
Jose Isidro Camacho (Sec. Camacho) informing him of CNMEGs designation as the Prime Contractor for the Northrail Project.
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Section I, Phase I of the
North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract Agreement). 7 The contract price for the
Northrail Project was pegged at USD 421,050,000.
On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial agreement Buyer Credit
Loan Agreement No. BLA 04055 (the Loan Agreement). In the Loan Agreement, EXIM Bank agreed to extend Preferential
Buyers Credit in the amount of USD 400,000,000 in favor of the Philippine government in order to finance the construction of
Phase I of the Northrail Project.
On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with Urgent Motion for Summary
Hearing to Determine the Existence of Facts and Circumstances Justifying the Issuance of Writs of Preliminary Prohibitory and
Mandatory Injunction and/or TRO against CNMEG, the Office of the Executive Secretary, the DOF, the Department of Budget
and Management, the National Economic Development Authority and Northrail. The case was filed before the Regional Trial
Court, National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint, respondents alleged that the
Contract Agreement and the Loan Agreement were void for being contrary to (a) the Constitution; (b) Republic Act No. 9184
(R.A. No. 9184), otherwise known as the Government Procurement Reform Act; (c) Presidential Decree No. 1445, otherwise
known as the Government Auditing Code; and (d) Executive Order No. 292, otherwise known as the Administrative Code.
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to Dismiss and setting the case for summary
hearing to determine whether the injunctive reliefs prayed for should be issued. CNMEG then filed a Motion for Reconsideration,

which was denied by the trial court in an Order dated 10 March 2008. Thus, CNMEG filed before the CA a Petition for Certiorari
with Prayer for the Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008.
the appellate court dismissed the Petition for Certiorari. Subsequently, CNMEG filed a Motion for Reconsideration, which was
denied by the CA in a Resolution dated 5 December 2008.
Petitioners Argument: Petitioner claims that the EXIM Bank extended financial assistance to Northrail because the bank was
mandated by the Chinese government, and not because of any motivation to do business in the Philippines, it is clear from the
foregoing provisions that the Northrail Project was a purely commercial transaction.
Respondents Argument: respondents alleged that the Contract Agreement and the Loan Agreement were void for being
contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government Procurement
Reform Act; (c) Presidential Decree No. 1445, otherwise known as the Government Auditing Code; and (d) Executive Order No.
292, otherwise known as the Administrative Code.
Issues: Whether or not petitioner CNMEG is an agent of the sovereign Peoples Republic of China.
Whether or not the Northrail contracts are products of an executive agreement between two sovereign states.
Ruling: The instant Petition is DENIED. Petitioner China National Machinery & Equipment Corp. (Group) is not entitled to immunity
from suit, and the Contract Agreement is not an executive agreement. CNMEGs prayer for the issuance of a TRO and/or Writ of
Preliminary Injunction is DENIED for being moot and academic.
The Court explained the doctrine of sovereign immunity in Holy See v. Rosario, to wit:
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign.
According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private acts or acts jure gestionis. (Emphasis supplied; citations omitted.)
As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign or governmental activities
(jure imperii). The mantle of state immunity cannot be extended to commercial, private and proprietary acts (jure gestionis).
Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act involved
whether the entity claiming immunity performs governmental, as opposed to proprietary, functions. As held in United States of
America v. Ruiz
Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government, while the Contract
Agreement was between Northrail and CNMEG. Although the Contract Agreement is silent on the classification of the legal nature of
the transaction, the foregoing provisions of the Loan Agreement, which is an inextricable part of the entire undertaking, nonetheless
reveal the intention of the parties to the Northrail Project to classify the whole venture as commercial or proprietary in character.
Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of Understanding dated 14
September 2002, Amb. Wangs letter dated 1 October 2003, and the Loan Agreement would reveal the desire of CNMEG to
construct the Luzon Railways in pursuit of a purely commercial activity performed in the ordinary course of its business.