EN BANC

January 12, 2016

G.R. No. 212426

RENE A.V. SAGUISAG, WIGBERTO E. TAADA, FRANCISCO

"DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN, PACIFICO
A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR.,
EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-
ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY CASIO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT
OF NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T.
BAUTISTA, Respondents.

x-----------------------x

G.R. No. 212444

BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED BY

ITS SECRETARY GENERAL RENATO M. REYES, JR., BAYAN MUNA
PARTY-LIST REPRESENTATIVES NERI J. COLMENARES AND
CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS,
ACT TEACHERS PARTY-LIST REPRESENTATIVE ANTONIO L.
TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE FERNANDO
HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON,
MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN),
REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA,
BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL MARIANO,
SALVADOR FRANCE, ROGELIO M. SOLUTA, AND CLEMENTE G.
BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY
VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES
CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR
LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA,
DEPARTMENT OF JUSTICE UNDERSECRETARY FRANCISCO
BARAAN III, AND DND ASSISTANT SECRETARY FOR STRATEGIC
ASSESSMENTS RAYMUND JOSE QUILOP AS CHAIRPERSON AND
MEMBERS, RESPECTIVELY, OF THE NEGOTIATING PANEL FOR
THE PHILIPPINES ON EDCA, Respondents.

x-----------------------x

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON,

ELMER LABOG, CONFEDERATION FOR UNITY, RECOGNITION
AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
REPRESENTED BY ITS NATIONAL PRESIDENT FERDINAND GAITE,
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO, REPRESENTED BY ITS NATIONAL PRESIDENT JOSELITO
USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA
FLORES, AND ARMANDO TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.

DECISION

SERENO, J.:

The petitions1 before this Court question the constitutionality of the Enhanced
Defense Cooperation Agreement (EDCA) between the Republic of the Philippines
and the United States of America (U.S.). Petitioners allege that respondents
committed grave abuse of discretion amounting to lack or excess of jurisdiction when
they entered into EDCA with the U.S.,2 claiming that the instrument violated multiple
constitutional provisions.3 In reply, respondents argue that petitioners lack standing to
bring the suit. To support the legality of their actions, respondents invoke the 1987
Constitution, treaties, and judicial precedents.4

A proper analysis of the issues requires this Court to lay down at the outset the basic
parameters of the constitutional powers and roles of the President and the Senate in
respect of the above issues. A more detailed discussion of these powers and roles will
be made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE
PRESIDENT: DEFENSE, FOREIGN RELATIONS, AND EDCA

A. The Prime Duty of the State and the Consolidation of Executive Power in
the President

Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang buong katapatan at

sigasig ang aking mga tungkulin bilang Pangulo (o Pangalawang Pangulo o Nanunungkulang
Pangulo) ng Pilipinas, pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang
mga batas nito, magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa paglilingkod
sa Bansa. Kasihan nawa aka ng Diyos.

- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang Batas5

The 1987 Constitution has "vested the executive power in the President of the
Republic of the Philippines."6 While the vastness of the executive power that has been
consolidated in the person of the President cannot be expressed fully in one
provision, the Constitution has stated the prime duty of the government, of which the
President is the head:

The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to render
personal military or civil service.7 (Emphases supplied)

B. The duty to protect the territory and the citizens of the Philippines, the
power to call upon the people to defend the State, and the President as
Commander-in-Chief

The duty to protect the State and its people must be carried out earnestly and
effectively throughout the whole territory of the Philippines in accordance with the
constitutional provision on national territory. Hence, the President of the Philippines,
as the sole repository of executive power, is the guardian of the Philippine
archipelago, including all the islands and waters embraced therein and all other
territories over which it has sovereignty or jurisdiction. These territories consist of its
terrestrial, fluvial, and aerial domains; including its territorial sea, the seabed, the
subsoil, the insular shelves, and other submarine areas; and the waters around,
between, and connecting the islands of the archipelago, regardless of their breadth
and dimensions.8

To carry out this important duty, the President is equipped with authority over the
Armed Forces of the Philippines (AFP),9 which is the protector of the people and the
state. The AFP's role is to secure the sovereignty of the State and the integrity of the
national territory.10 In addition, the Executive is constitutionally empowered to
maintain peace and order; protect life, liberty, and property; and promote the general
welfare.11

In recognition of these powers, Congress has specified that the President must
oversee, ensure, and reinforce our defensive capabilities against external and internal
threats12 and, in the same vein, ensure that the country is adequately prepared for all
national and local emergencies arising from natural and man-made disasters.13

To be sure, this power is limited by the Constitution itself. To illustrate, the President
may call out the AFP to prevent or suppress instances of lawless violence, invasion or
rebellion,14 but not suspend the privilege of the writ of habeas corpus for a period
exceeding 60 days, or place the Philippines or any part thereof under martial law
exceeding that same span. In the exercise of these powers, the President is also duty-
bound to submit a report to Congress, in person or in writing, within 48 hours from
the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus; and Congress may in turn revoke the proclamation or suspension. The
same provision provides for the Supreme Court's review of the factual basis for the
proclamation or suspension, as well as the promulgation of the decision within 30
days from filing.

C. The power and duty to conduct foreign relations

The President also carries the mandate of being the sole organ in the conduct of
foreign relations.15 Since every state has the capacity to interact with and engage in
relations with other sovereign states,16 it is but logical that every state must vest in an
agent the authority to represent its interests to those other sovereign states.

The conduct of foreign relations is full of complexities and consequences, sometimes

with life and death significance to the nation especially in times of war. It can only be
entrusted to that department of government which can act on the basis of the best
available information and can decide with decisiveness. x x x It is also the President
who possesses the most comprehensive and the most confidential information about
foreign countries for our diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited access to ultra-sensitive
military intelligence data. In fine, the presidential role in foreign affairs is dominant
and the President is traditionally accorded a wider degree of discretion in the conduct
of foreign affairs. The regularity, nay, validity of his actions are adjudged under less
stringent standards, lest their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of confidence, national embarrassment
and a plethora of other problems with equally undesirable consequences.17

The role of the President in foreign affairs is qualified by the Constitution in that the
Chief Executive must give paramount importance to the sovereignty of the nation,
the integrity of its territory, its interest, and the right of the sovereign Filipino people
to self-determination.18 In specific provisions, the President's power is also limited, or
at least shared, as in Section 2 of Article II on the conduct of war; Sections 20 and 21
of Article VII on foreign loans, treaties, and international agreements; Sections 4(2)
and 5(2)(a) of Article VIII on the judicial review of executive acts; Sections 4 and 25
of Article XVIII on treaties and international agreements entered into prior to the
Constitution and on the presence of foreign military troops, bases, or facilities.

D. The relationship between the two major presidential functions and the role
of the Senate

Clearly, the power to defend the State and to act as its representative in the
international sphere inheres in the person of the President. This power, however, does
not crystallize into absolute discretion to craft whatever instrument the Chief
Executive so desires. As previously mentioned, the Senate has a role in ensuring that
treaties or international agreements the President enters into, as contemplated in
Section 21 of Article VII of the Constitution, obtain the approval of two-thirds of its
members.

Previously, treaties under the 1973 Constitution required ratification by a majority of

the Batasang Pambansa,19except in instances wherein the President "may enter into
international treaties or agreements as the national welfare and interest may
require."20 This left a large margin of discretion that the President could use to bypass
the Legislature altogether. This was a departure from the 1935 Constitution, which
explicitly gave the President the power to enter into treaties only with the concurrence
of two-thirds of all the Members of the Senate.21 The 1987 Constitution returned the
Senate's power22 and, with it, the legislative's traditional role in foreign affairs.23

The responsibility of the President when it comes to treaties and international

agreements under the present Constitution is therefore shared with the Senate. This
shared role, petitioners claim, is bypassed by EDCA.

II. HISTORICAL ANTECEDENTS OF EDCA

A. U.S. takeover of Spanish colonization and its military bases, and the
transition to Philippine independence
The presence of the U.S. military forces in the country can be traced to their pivotal
victory in the 1898 Battle of Manila Bay during the Spanish-American War.24 Spain
relinquished its sovereignty over the Philippine Islands in favor of the U.S. upon its
formal surrender a few months later.25 By 1899, the Americans had consolidated a
military administration in the archipelago.26

When it became clear that the American forces intended to impose colonial control
over the Philippine Islands, General Emilio Aguinaldo immediately led the Filipinos
into an all-out war against the U.S.27 The Filipinos were ultimately defeated in the
Philippine-American War, which lasted until 1902 and led to the downfall of the first
Philippine Republic.28 The Americans henceforth began to strengthen their foothold
in the country.29 They took over and expanded the former Spanish Naval Base in
Subic Bay, Zambales, and put up a cavalry post called Fort Stotsenberg in Pampanga,
now known as Clark Air Base.30

When talks of the eventual independence of the Philippine Islands gained ground, the
U.S. manifested the desire to maintain military bases and armed forces in the
country.31 The U.S. Congress later enacted the Hare-Hawes-Cutting Act of 1933,
which required that the proposed constitution of an independent Philippines
recognize the right of the U.S. to maintain the latter's armed forces and military
bases.32 The Philippine Legislature rejected that law, as it also gave the U.S. the power
to unilaterally designate any part of Philippine territory as a permanent military or
naval base of the U.S. within two years from complete independence.33

The U.S. Legislature subsequently crafted another law called the Tydings-McDuffie
Act or the Philippine Independence Act of 1934. Compared to the old Hare-Hawes-
Cutting Act, the new law provided for the surrender to the Commonwealth
Government of "all military and other reservations" of the U.S. government in the
Philippines, except "naval reservations and refueling stations."34 Furthermore, the law
authorized the U.S. President to enter into negotiations for the adjustment and
settlement of all questions relating to naval reservations and fueling stations within
two years after the Philippines would have gained independence.35 Under the Tydings-
McDuffie Act, the U.S. President would proclaim the American withdrawal and
surrender of sovereignty over the islands 10 years after the inauguration of the new
government in the Philippines.36 This law eventually led to the promulgation of the
1935 Philippine Constitution.

The original plan to surrender the military bases changed.37 At the height of the
Second World War, the Philippine and the U.S. Legislatures each passed resolutions
authorizing their respective Presidents to negotiate the matter of retaining military
bases in the country after the planned withdrawal of the U.S.38 Subsequently, in 1946,
the countries entered into the Treaty of General Relations, in which the U.S.
relinquished all control and sovereignty over the Philippine Islands, except the areas
that would be covered by the American military bases in the country.39 This treaty
eventually led to the creation of the post-colonial legal regime on which would hinge
the continued presence of U.S. military forces until 1991: the Military Bases
Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, and the
Mutual Defense Treaty (MDT) of 1951.40

B. Former legal regime on the presence of U.S. armed forces in the territory of
an independent Philippines (1946-1991)

Soon after the Philippines was granted independence, the two countries entered into
their first military arrangement pursuant to the Treaty of General Relations - the 1947
MBA.41 The Senate concurred on the premise of "mutuality of security
interest,"42 which provided for the presence and operation of 23 U.S. military bases in
the Philippines for 99 years or until the year 2046.43 The treaty also obliged the
Philippines to negotiate with the U.S. to allow the latter to expand the existing bases
or to acquire new ones as military necessity might require.44

A number of significant amendments to the 1947 MBA were made.45 With respect to
its duration, the parties entered into the Ramos-Rusk Agreement of 1966, which
reduced the term of the treaty from 99 years to a total of 44 years or until
1991.46 Concerning the number of U.S. military bases in the country, the Bohlen-
Serrano Memorandum of Agreement provided for the return to the Philippines of 17
U.S. military bases covering a total area of 117,075 hectares.47 Twelve years later, the
U.S. returned Sangley Point in Cavite City through an exchange of notes.48 Then,
through the Romulo-Murphy Exchange of Notes of 1979, the parties agreed to the
recognition of Philippine sovereignty over Clark and Subic Bases and the reduction of
the areas that could be used by the U.S. military.49 The agreement also provided for
the mandatory review of the treaty every five years.50 In 1983, the parties revised the
1947 MBA through the Romualdez-Armacost Agreement.51 The revision pertained to
the operational use of the military bases by the U.S. government within the context of
Philippine sovereignty,52 including the need for prior consultation with the Philippine
government on the former' s use of the bases for military combat operations or the
establishment of long-range missiles.53

Pursuant to the legislative authorization granted under Republic Act No. 9,54 the
President also entered into the 1947 Military Assistance Agreement55 with the U.S.
This executive agreement established the conditions under which U.S. military
assistance would be granted to the Philippines,56 particularly the provision of military
arms, ammunitions, supplies, equipment, vessels, services, and training for the latter's
defense forces.57 An exchange of notes in 1953 made it clear that the agreement
would remain in force until terminated by any of the parties.58

To further strengthen their defense and security relationship,59 the Philippines and the
U.S. next entered into the MDT in 1951. Concurred in by both the Philippine60 and
the U.S.61 Senates, the treaty has two main features: first, it allowed for mutual
assistance in maintaining and developing their individual and collective capacities to
resist an armed attack;62 and second, it provided for their mutual self-defense in the
event of an armed attack against the territory of either party.63 The treaty was
premised on their recognition that an armed attack on either of them would equally be
a threat to the security of the other.64

C. Current legal regime on the presence of U.S. armed forces in the country

In view of the impending expiration of the 1947 MBA in 1991, the Philippines and
the U.S. negotiated for a possible renewal of their defense and security
relationship.65 Termed as the Treaty of Friendship, Cooperation and Security, the
countries sought to recast their military ties by providing a new framework for their
defense cooperation and the use of Philippine installations.66 One of the proposed
provisions included an arrangement in which U.S. forces would be granted the use of
certain installations within the Philippine naval base in Subic.67 On 16 September
1991, the Senate rejected the proposed treaty.68

The consequent expiration of the 1947 MBA and the resulting paucity of any formal
agreement dealing with the treatment of U.S. personnel in the Philippines led to the
suspension in 1995 of large-scale joint military exercises.69In the meantime, the
respective governments of the two countries agreed70 to hold joint exercises at a
substantially reduced level.71 The military arrangements between them were revived in
1999 when they concluded the first Visiting Forces Agreement (VFA).72

As a "reaffirm[ation] [of the] obligations under the MDT,"73 the VFA has laid down
the regulatory mechanism for the treatment of U.S. military and civilian personnel
visiting the country.74 It contains provisions on the entry and departure of U.S.
personnel; the purpose, extent, and limitations of their activities; criminal and
disciplinary jurisdiction; the waiver of certain claims; the importation and exportation
of equipment, materials, supplies, and other pieces of property owned by the U.S.
government; and the movement of U.S. military vehicles, vessels, and aircraft into and
within the country.75 The Philippines and the U.S. also entered into a second
counterpart agreement (VFA II), which in turn regulated the treatment of Philippine
military and civilian personnel visiting the U.S.76 The Philippine Senate concurred in
the first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started arriving in
Mindanao to take part in joint military exercises with their Filipino
counterparts.78 Called Balikatan, these exercises involved trainings aimed at simulating
joint military maneuvers pursuant to the MDT.79

In the same year, the Philippines and the U.S. entered into the Mutual Logistics
Support Agreement to "further the interoperability, readiness, and effectiveness of
their respective military forces"80 in accordance with the MDT, the Military Assistance
Agreement of 1953, and the VFA.81 The new agreement outlined the basic terms,
conditions, and procedures for facilitating the reciprocal provision of logistics
support, supplies, and services between the military forces of the two countries.82 The
phrase "logistics support and services" includes billeting, operations support,
construction and use of temporary structures, and storage services during an approved
activity under the existing military arrangements.83 Already extended twice, the
agreement will last until 2017.84

D. The Enhanced Defense Cooperation Agreement

EDCA authorizes the U.S. military forces to have access to and conduct activities
within certain "Agreed Locations" in the country. It was not transmitted to the Senate
on the executive's understanding that to do so was no longer necessary.85 Accordingly,
in June 2014, the Department of Foreign Affairs (DFA) and the U.S. Embassy
exchanged diplomatic notes confirming the completion of all necessary internal
requirements for the agreement to enter into force in the two countries.86

According to the Philippine government, the conclusion of EDCA was the result of
intensive and comprehensive negotiations in the course of almost two years.87 After
eight rounds of negotiations, the Secretary of National Defense and the U.S.
Ambassador to the Philippines signed the agreement on 28 April 2014.88 President
Benigno S. Aquino III ratified EDCA on 6 June 2014.89 The OSG clarified during the
oral arguments90 that the Philippine and the U.S. governments had yet to agree
formally on the specific sites of the Agreed Locations mentioned in the agreement.

Two petitions for certiorari were thereafter filed before us assailing the constitutionality
of EDCA. They primarily argue that it should have been in the form of a treaty
concurred in by the Senate, not an executive agreement.

On 10 November 2015, months after the oral arguments were concluded and the
parties ordered to file their respective memoranda, the Senators adopted Senate
Resolution No. (SR) 105.91 The resolution expresses the "strong sense"92 of the
Senators that for EDCA to become valid and effective, it must first be transmitted to
the Senate for deliberation and concurrence.

III. ISSUES

Petitioners mainly seek a declaration that the Executive Department committed grave
abuse of discretion in entering into EDCA in the form of an executive agreement. For
this reason, we cull the issues before us:

A. Whether the essential requisites for judicial review are present

B. Whether the President may enter into an executive agreement on

foreign military bases, troops, or facilities

C. Whether the provisions under EDCA are consistent with the

Constitution, as well as with existing laws and treaties

IV. DISCUSSION

A. Whether the essential requisites for judicial review have been satisfied

Petitioners are hailing this Court's power of judicial review in order to strike down
EDCA for violating the Constitution. They stress that our fundamental law is explicit
in prohibiting the presence of foreign military forces in the country, except under a
treaty concurred in by the Senate. Before this Court may begin to analyze the
constitutionality or validity of an official act of a coequal branch of government,
however, petitioners must show that they have satisfied all the essential requisites for
judicial review.93

Distinguished from the general notion of judicial power, the power of judicial review
specially refers to both the authority and the duty of this Court to determine whether
a branch or an instrumentality of government has acted beyond the scope of the
latter's constitutional powers.94 As articulated in Section 1, Article VIII of the
Constitution, the power of judicial review involves the power to resolve cases in
which the questions concern the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation.95 In Angara v. Electoral Commission, this Court
exhaustively discussed this "moderating power" as part of the system of checks and
balances under the Constitution. In our fundamental law, the role of the Court is to
determine whether a branch of government has adhered to the specific restrictions
and limitations of the latter's power:96
The separation of powers is a fundamental principle in our system of government. It
obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept separate and distinct that
the Constitution intended them to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of checks and
balances to secure coordination in the workings of the various departments of the
government. x x x. And the judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in the exercise of its power to
determine the law, and hence to declare executive and legislative acts void if
violative of the Constitution.

xxxx

As any human production, our Constitution is of course lacking perfection and

perfectibility, but as much as it was within the power of our people, acting through
their delegates to so provide, that instrument which is the expression of their
sovereignty however limited, has established a republican government intended
to operate and function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions provided in the
said instrument. The Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the course
of government along constitutional channels, for then the distribution of
powers would be mere verbiage, the bill of rights mere expressions of
sentiment, and the principles of good government mere political apothegms.
Certainly, the limitations and restrictions embodied in our Constitution are real as they
should be in any living constitution. x x x. In our case, this moderating power is
granted, if not expressly, by clear implication from section 2 of article VIII of [the
1935] Constitution.

The Constitution is a definition of the powers of government. Who is to determine

the nature, scope and extent of such powers? The Constitution itself has provided for
the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to
them. This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the
Constitution. x x x x. (Emphases supplied)

The power of judicial review has since been strengthened in the 1987 Constitution.
The scope of that power has been extended to the determination of whether in
matters traditionally considered to be within the sphere of appreciation of another
branch of government, an exercise of discretion has been attended with grave
abuse.97 The expansion of this power has made the political question doctrine "no
longer the insurmountable obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and legislative actions from judicial inquiry
or review."98

This moderating power, however, must be exercised carefully and only if it cannot be
completely avoided. We stress that our Constitution is so incisively designed that it
identifies the spheres of expertise within which the different branches of government
shall function and the questions of policy that they shall resolve.99 Since the power of
judicial review involves the delicate exercise of examining the validity or
constitutionality of an act of a coequal branch of government, this Court must
continually exercise restraint to avoid the risk of supplanting the wisdom of the
constitutionally appointed actor with that of its own.100

Even as we are left with no recourse but to bare our power to check an act of a
coequal branch of government - in this case the executive - we must abide by the
stringent requirements for the exercise of that power under the Constitution. Demetria
v. Alba101 and Francisco v. House of Representatives102 cite the "pillars" of the limitations on
the power of judicial review as enunciated in the concurring opinion of U.S. Supreme
Court Justice Brandeis in Ashwander v. Tennessee Valley Authority.103 Francisco104 redressed
these "pillars" under the following categories:

1. That there be absolute necessity of deciding a case

2. That rules of constitutional law shall be formulated only as required by

the facts of the case

3. That judgment may not be sustained on some other ground

4. That there be actual injury sustained by the party by reason of the

operation of the statute

5. That the parties are not in estoppel

 6. That the Court upholds the presumption of constitutionality

(Emphases supplied)

These are the specific safeguards laid down by the Court when it exercises its power
of judicial review.105 Guided by these pillars, it may invoke the power only when the
following four stringent requirements are satisfied: (a) there is an actual case or
controversy; (b) petitioners possess locus standi; (c) the question of constitutionality is
raised at the earliest opportunity; and (d) the issue of constitutionality is the lis mota of
the case.106 Of these four, the first two conditions will be the focus of our discussion.

1. Petitioners have shown the presence of an actual case or controversy.

The OSG maintains107 that there is no actual case or controversy that exists, since the
Senators have not been deprived of the opportunity to invoke the privileges of the
institution they are representing. It contends that the nonparticipation of the Senators
in the present petitions only confirms that even they believe that EDCA is a binding
executive agreement that does not require their concurrence.

It must be emphasized that the Senate has already expressed its position through SR
105.108 Through the Resolution, the Senate has taken a position contrary to that of the
OSG. As the body tasked to participate in foreign affairs by ratifying treaties, its belief
that EDCA infringes upon its constitutional role indicates that an actual controversy -
albeit brought to the Court by non-Senators, exists.

Moreover, we cannot consider the sheer abstention of the Senators from the present
proceedings as basis for finding that there is no actual case or controversy before us.
We point out that the focus of this requirement is the ripeness for adjudication of the
matter at hand, as opposed to its being merely conjectural or anticipatory.109 The case
must involve a definite and concrete issue involving real parties with conflicting legal
rights and legal claims admitting of specific relief through a decree conclusive in
nature.110 It should not equate with a mere request for an opinion or advice on what
the law would be upon an abstract, hypothetical, or contingent state of facts.111 As
explained in Angara v. Electoral Commission:112

[The] power of judicial review is limited to actual cases and controversies to be

exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to legislative enactments, not
only because the legislature is presumed to abide by the Constitution but also because
the judiciary in the determination of actual cases and controversies must reflect
the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government.
(Emphases supplied)

We find that the matter before us involves an actual case or controversy that is already
ripe for adjudication. The Executive Department has already sent an official
confirmation to the U.S. Embassy that "all internal requirements of the Philippines x
x x have already been complied with."113 By this exchange of diplomatic notes, the
Executive Department effectively performed the last act required under Article XII(l)
of EDCA before the agreement entered into force. Section 25, Article XVIII of the
Constitution, is clear that the presence of foreign military forces in the country shall
only be allowed by virtue of a treaty concurred in by the Senate. Hence, the
performance of an official act by the Executive Department that led to the entry into
force of an executive agreement was sufficient to satisfy the actual case or controversy
requirement.

2. While petitioners Saguisag et. al., do not have legal standing, they
nonetheless raise issues involving matters of transcendental importance.

The question of locus standi or legal standing focuses on the determination of whether
those assailing the governmental act have the right of appearance to bring the matter
to the court for adjudication.114 They must show that they have a personal and
substantial interest in the case, such that they have sustained or are in immediate
danger of sustaining, some direct injury as a consequence of the enforcement of the
challenged governmental act.115 Here, "interest" in the question involved must be
material - an interest that is in issue and will be affected by the official act - as
distinguished from being merely incidental or general.116 Clearly, it would be
insufficient to show that the law or any governmental act is invalid, and that
petitioners stand to suffer in some indefinite way.117 They must show that they have a
particular interest in bringing the suit, and that they have been or are about to be
denied some right or privilege to which they are lawfully entitled, or that they are
about to be subjected to some burden or penalty by reason of the act complained
of.118 The reason why those who challenge the validity of a law or an international
agreement are required to allege the existence of a personal stake in the outcome of
the controversy is "to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions."119
The present petitions cannot qualify as citizens', taxpayers', or legislators' suits; the Senate as a body
has the requisite standing, but considering that it has not formally filed a pleading to join the suit, as
it merely conveyed to the Supreme Court its sense that EDCA needs the Senate's concurrence to be
valid, petitioners continue to suffer from lack of standing.

In assailing the constitutionality of a governmental act, petitioners suing as citizens

may dodge the requirement of having to establish a direct and personal interest if they
show that the act affects a public right.120 In arguing that they have legal standing, they
claim121 that the case they have filed is a concerned citizen's suit. But aside from
general statements that the petitions involve the protection of a public right, and that
their constitutional rights as citizens would be violated, they fail to make any specific
assertion of a particular public right that would be violated by the enforcement of
EDCA. For their failure to do so, the present petitions cannot be considered by
the Court as citizens' suits that would justify a disregard of the aforementioned
requirements.

In claiming that they have legal standing as taxpayers, petitioners122 aver that the
implementation of EDCA would result in the unlawful use of public funds. They
emphasize that Article X(1) refers to an appropriation of funds; and that the
agreement entails a waiver of the payment of taxes, fees, and rentals. During the oral
arguments, however, they admitted that the government had not yet appropriated or
actually disbursed public funds for the purpose of implementing the
agreement.123 The OSG, on the other hand, maintains that petitioners cannot sue as
taxpayers.124Respondent explains that EDCA is neither meant to be a tax measure,
nor is it directed at the disbursement of public funds.

A taxpayer's suit concerns a case in which the official act complained of directly
involves the illegal disbursement of public funds derived from taxation.125 Here, those
challenging the act must specifically show that they have sufficient interest in
preventing the illegal expenditure of public money, and that they will sustain a direct
injury as a result of the enforcement of the assailed act.126 Applying that principle to
this case, they must establish that EDCA involves the exercise by Congress of its taxing
or spending powers.127

We agree with the OSG that the petitions cannot qualify as taxpayers' suits. We
emphasize that a taxpayers' suit contemplates a situation in which there is already an
appropriation or a disbursement of public funds.128 A reading of Article X(l) of
EDCA would show that there has been neither an appropriation nor an authorization
of disbursement of funds. The cited provision reads:
All obligations under this Agreement are subject to the availability of appropriated
funds authorized for these purposes. (Emphases supplied)

This provision means that if the implementation of EDCA would require the
disbursement of public funds, the money must come from appropriated funds that are
specifically authorized for this purpose. Under the agreement, before there can even be
a disbursement of public funds, there must first be a legislative action. Until and
unless the Legislature appropriates funds for EDCA, or unless petitioners can
pinpoint a specific item in the current budget that allows expenditure under
the agreement, we cannot at this time rule that there is in fact an appropriation
or a disbursement of funds that would justify the filing of a taxpayers' suit.

Petitioners Bayan et al. also claim129 that their co-petitioners who are party-list
representatives have the standing to challenge the act of the Executive Department,
especially if it impairs the constitutional prerogatives, powers, and privileges of their
office. While they admit that there is no incumbent Senator who has taken part in the
present petition, they nonetheless assert that they also stand to sustain a derivative but
substantial injury as legislators. They argue that under the Constitution, legislative
power is vested in both the Senate and the House of Representatives; consequently, it
is the entire Legislative Department that has a voice in determining whether or not
the presence of foreign military should be allowed. They maintain that as members of
the Legislature, they have the requisite personality to bring a suit, especially when a
constitutional issue is raised.

The OSG counters130 that petitioners do not have any legal standing to file the suits
concerning the lack of Senate concurrence in EDCA. Respondent emphasizes that the
power to concur in treaties and international agreements is an "institutional
prerogative" granted by the Constitution to the Senate. Accordingly, the OSG argues
that in case of an allegation of impairment of that power, the injured party would be
the Senate as an institution or any of its incumbent members, as it is the Senate's
constitutional function that is allegedly being violated.

The legal standing of an institution of the Legislature or of any of its Members has
already been recognized by this Court in a number of cases.131 What is in question
here is the alleged impairment of the constitutional duties and powers granted to, or
the impermissible intrusion upon the domain of, the Legislature or an institution
thereof.132 In the case of suits initiated by the legislators themselves, this Court has
recognized their standing to question the validity of any official action that they claim
infringes the prerogatives, powers, and privileges vested by the Constitution in their
office.133 As aptly explained by Justice Perfecto in Mabanag v. Lopez Vito:134
Being members of Congress, they are even duty bound to see that the latter act
within the bounds of the Constitution which, as representatives of the people,
they should uphold, unless they are to commit a flagrant betrayal of public trust. They
are representatives of the sovereign people and it is their sacred duty to see to it
that the fundamental law embodying the will of the sovereign people is not
trampled upon. (Emphases supplied)

We emphasize that in a legislators' suit, those Members of Congress who are

challenging the official act have standing only to the extent that the alleged violation
impinges on their right to participate in the exercise of the powers of the institution of
which they are members.135 Legislators have the standing "to maintain inviolate the
prerogatives, powers, and privileges vested by the Constitution in their office and are
allowed to sue to question the validity of any official action, which they claim infringes
their prerogatives as legislators."136 As legislators, they must clearly show that there
was a direct injury to their persons or the institution to which they belong.137

As correctly argued by respondent, the power to concur in a treaty or an international

agreement is an institutional prerogative granted by the Constitution to the Senate,
not to the entire Legislature. In Pimentel v. Office of the Executive Secretary, this Court did
not recognize the standing of one of the petitioners therein who was a member of the
House of Representatives. The petition in that case sought to compel the transmission
to the Senate for concurrence of the signed text of the Statute of the International
Criminal Court. Since that petition invoked the power of the Senate to grant or
withhold its concurrence in a treaty entered into by the Executive Department, only
then incumbent Senator Pimentel was allowed to assert that authority of the Senate of
which he was a member.

Therefore, none of the initial petitioners in the present controversy has the
standing to maintain the suits as legislators.

Nevertheless, this Court finds that there is basis for it to review the act of the
Executive for the following reasons.

In any case, petitioners raise issues involving matters of transcendental importance.

Petitioners138 argue that the Court may set aside procedural technicalities, as the
present petition tackles issues that are of transcendental importance. They point out
that the matter before us is about the proper exercise of the Executive Department's
power to enter into international agreements in relation to that of the Senate to
concur in those agreements. They also assert that EDCA would cause grave injustice,
as well as irreparable violation of the Constitution and of the Filipino people's rights.
The OSG, on the other hand, insists139 that petitioners cannot raise the mere fact that
the present petitions involve matters of transcendental importance in order to cure
their inability to comply with the constitutional requirement of standing. Respondent
bewails the overuse of "transcendental importance" as an exception to the traditional
requirements of constitutional litigation. It stresses that one of the purposes of these
requirements is to protect the Supreme Court from unnecessary litigation of
constitutional questions.

In a number of cases,140 this Court has indeed taken a liberal stance towards the
requirement of legal standing, especially when paramount interest is involved. Indeed,
when those who challenge the official act are able to craft an issue of transcendental
significance to the people, the Court may exercise its sound discretion and take
cognizance of the suit. It may do so in spite of the inability of the petitioners to show
that they have been personally injured by the operation of a law or any other
government act.

While this Court has yet to thoroughly delineate the outer limits of this doctrine, we
emphasize that not every other case, however strong public interest may be, can
qualify as an issue of transcendental importance. Before it can be impelled to brush
aside the essential requisites for exercising its power of judicial review, it must at the
very least consider a number of factors: (1) the character of the funds or other assets
involved in the case; (2) the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the
government; and (3) the lack of any other party that has a more direct and specific
interest in raising the present questions.141

An exhaustive evaluation of the memoranda of the parties, together with the oral
arguments, shows that petitioners have presented serious constitutional issues that
provide ample justification for the Court to set aside the rule on standing. The
transcendental importance of the issues presented here is rooted in the Constitution
itself. Section 25, Article XVIII thereof, cannot be any clearer: there is a much stricter
mechanism required before foreign military troops, facilities, or bases may be allowed
in the country. The DFA has already confirmed to the U.S. Embassy that "all internal
requirements of the Philippines x x x have already been complied with."142 It
behooves the Court in this instance to take a liberal stance towards the rule on
standing and to determine forthwith whether there was grave abuse of discretion on
the part of the Executive Department.

We therefore rule that this case is a proper subject for judicial review.
 B. Whether the President may enter into an executive agreement on
foreign military bases, troops, or facilities

C. Whether the provisions under EDCA are consistent with the

Constitution, as well as with existing laws and treaties

Issues B and C shall be discussed together infra.

1. The role of the President as the executor of the law includes the duty to
defend the State, for which purpose he may use that power in the conduct of
foreign relations

Historically, the Philippines has mirrored the division of powers in the U.S.
government. When the Philippine government was still an agency of the Congress of
the U.S., it was as an agent entrusted with powers categorized as executive, legislative,
and judicial, and divided among these three great branches.143 By this division, the law
implied that the divided powers cannot be exercised except by the department given
the power.144

This divide continued throughout the different versions of the Philippine

Constitution and specifically vested the supreme executive power in the Governor-
General of the Philippines,145 a position inherited by the President of the Philippines
when the country attained independence. One of the principal functions of the
supreme executive is the responsibility for the faithful execution of the laws as
embodied by the oath of office.146 The oath of the President prescribed by the 1987
Constitution reads thus:

I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my
duties as President (or Vice-President or Acting President) of the Philippines,
preserve and defend its Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. So help me God. (In case of
affirmation, last sentence will be omitted.)147 (Emphases supplied)

This Court has interpreted the faithful execution clause as an obligation imposed on
the President, and not a separate grant of power.148 Section 1 7, Article VII of the
Constitution, expresses this duty in no uncertain terms and includes it in the provision
regarding the President's power of control over the executive department, viz:

The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not explicitly require
this oath from the President. In the 1973 Constitution, for instance, the provision
simply gives the President control over the ministries.149 A similar language, not in the
form of the President's oath, was present in the 1935 Constitution, particularly in the
enumeration of executive functions.150 By 1987, executive power was codified not
only in the Constitution, but also in the Administrative Code:151

SECTION 1. Power of Control. - The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied)

Hence, the duty to faithfully execute the laws of the land is inherent in executive
power and is intimately related to the other executive functions. These functions
include the faithful execution of the law in autonomous regions;152 the right to
prosecute crimes;153 the implementation of transportation projects;154 the duty to
ensure compliance with treaties, executive agreements and executive orders;155 the
authority to deport undesirable aliens;156 the conferment of national awards under the
President's jurisdiction;157 and the overall administration and control of the executive
department.158

These obligations are as broad as they sound, for a President cannot function with
crippled hands, but must be capable of securing the rule of law within all territories of
the Philippine Islands and be empowered to do so within constitutional limits.
Congress cannot, for instance, limit or take over the President's power to adopt
implementing rules and regulations for a law it has enacted.159

More important, this mandate is self-executory by virtue of its being inherently

executive in nature.160 As Justice Antonio T. Carpio previously wrote,161

[i]f the rules are issued by the President in implementation or execution of self-
executory constitutional powers vested in the President, the rule-making power of the
President is not a delegated legislative power. The most important self-executory
constitutional power of the President is the President's constitutional duty and
mandate to "ensure that the laws be faithfully executed." The rule is that the President
can execute the law without any delegation of power from the legislature.

The import of this characteristic is that the manner of the President's

execution of the law, even if not expressly granted by the law, is justified by
necessity and limited only by law, since the President must "take necessary
and proper steps to carry into execution the law."162 Justice George Malcolm
states this principle in a grand manner:163
The executive should be clothed with sufficient power to administer efficiently the
affairs of state. He should have complete control of the instrumentalities through
whom his responsibility is discharged. It is still true, as said by Hamilton, that "A
feeble executive implies a feeble execution of the government. A feeble execution is
but another phrase for a bad execution; and a government ill executed, whatever it
may be in theory, must be in practice a bad government." The mistakes of State
governments need not be repeated here.

xxxx

Every other consideration to one side, this remains certain - The Congress of the
United States clearly intended that the Governor-General's power should be
commensurate with his responsibility. The Congress never intended that the
Governor-General should be saddled with the responsibility of administering the
government and of executing the laws but shorn of the power to do so. The interests
of the Philippines will be best served by strict adherence to the basic principles of
constitutional government.

In light of this constitutional duty, it is the President's prerogative to do whatever is

legal and necessary for Philippine defense interests. It is no coincidence that the
constitutional provision on the faithful execution clause was followed by that on the
President's commander-in-chief powers,164 which are specifically granted during
extraordinary events of lawless violence, invasion, or rebellion. And this duty of
defending the country is unceasing, even in times when there is no state of lawlesss
violence, invasion, or rebellion. At such times, the President has full powers to ensure
the faithful execution of the laws.

It would therefore be remiss for the President and repugnant to the faithful-execution
clause of the Constitution to do nothing when the call of the moment requires
increasing the military's defensive capabilities, which could include forging alliances
with states that hold a common interest with the Philippines or bringing an
international suit against an offending state.

The context drawn in the analysis above has been termed by Justice Arturo D. Brion's
Dissenting Opinion as the beginning of a "patent misconception."165 His dissent
argues that this approach taken in analyzing the President's role as executor of the
laws is preceded by the duty to preserve and defend the Constitution, which was
allegedly overlooked.166

In arguing against the approach, however, the dissent grossly failed to appreciate the
nuances of the analysis, if read holistically and in context. The concept that the
President cannot function with crippled hands and therefore can disregard the need
for Senate concurrence in treaties167 was never expressed or implied. Rather, the
appropriate reading of the preceding analysis shows that the point being elucidated is
the reality that the President's duty to execute the laws and protect the Philippines is
inextricably interwoven with his foreign affairs powers, such that he must resolve
issues imbued with both concerns to the full extent of his powers, subject only to the
limits supplied by law. In other words, apart from an expressly mandated limit, or an
implied limit by virtue of incompatibility, the manner of execution by the President
must be given utmost deference. This approach is not different from that taken by the
Court in situations with fairly similar contexts.

Thus, the analysis portrayed by the dissent does not give the President authority to
bypass constitutional safeguards and limits. In fact, it specifies what these limitations
are, how these limitations are triggered, how these limitations function, and what can
be done within the sphere of constitutional duties and limitations of the President.

Justice Brion's dissent likewise misinterprets the analysis proffered when it claims that
the foreign relations power of the President should not be interpreted in
isolation.168 The analysis itself demonstrates how the foreign affairs function, while
mostly the President's, is shared in several instances, namely in Section 2 of Article II
on the conduct of war; Sections 20 and 21 of Article VII on foreign loans, treaties,
and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the judicial
review of executive acts; Sections 4 and 25 of Article XVIII on treaties and
international agreements entered into prior to the Constitution and on the presence of
foreign military troops, bases, or facilities.

In fact, the analysis devotes a whole subheading to the relationship between the two
major presidential functions and the role of the Senate in it.

This approach of giving utmost deference to presidential initiatives in respect of

foreign affairs is not novel to the Court. The President's act of treating EDCA as an
executive agreement is not the principal power being analyzed as the Dissenting
Opinion seems to suggest. Rather, the preliminary analysis is in reference to the
expansive power of foreign affairs. We have long treated this power as something the
Courts must not unduly restrict. As we stated recently in Vinuya v. Romulo:

To be sure, not all cases implicating foreign relations present political questions, and
courts certainly possess the authority to construe or invalidate treaties and executive
agreements. However, the question whether the Philippine government should
espouse claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our Constitution not to
the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its
nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of
such decision is not for the courts to question. Neither could petitioners herein assail
the said determination by the Executive Department via the instant petition for
certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme Court held
that "[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations."

It is quite apparent that if, in the maintenance of our international

relations, embarrassment - perhaps serious embarrassment - is to be
avoided and success for our aims achieved, congressional legislation
which is to be made effective through negotiation and inquiry within the
international field must often accord to the President a degree of
discretion and freedom from statutory restriction which would not
be admissible where domestic affairs alone involved. Moreover, he,
not Congress, has the better opportunity of knowing the conditions
which prevail in foreign countries, and especially is this true in time of
war. He has his confidential sources of information. He has his agents in
the form of diplomatic, consular and other officials ....

This ruling has been incorporated in our jurisprudence through Bavan v.

Executive Secretary and Pimentel v. Executive Secretary; its overreaching
principle was, perhaps, best articulated in (now Chief) Justice Puno's dissent in
Secretary of Justice v. Lantion:

. . . The conduct of foreign relations is full of complexities and

consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information
and can decide with decisiveness .... It is also the President who
possesses the most comprehensive and the most confidential
information about foreign countries for our diplomatic and consular
officials regularly brief him on meaningful events all over the world. He
has also unlimited access to ultra-sensitive military intelligence data. In
fine, the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion in
the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their
 judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national
embarrassment and a plethora of other problems with equally
undesirable consequences.169 (Emphases supplied)

Understandably, this Court must view the instant case with the same perspective and
understanding, knowing full well the constitutional and legal repercussions of any
judicial overreach.

2. The plain meaning of the Constitution prohibits the entry of foreign military
bases, troops or facilities, except by way of a treaty concurred in by the Senate -
a clear limitation on the President's dual role as defender of the State and as
sole authority in foreign relations.

Despite the President's roles as defender of the State and sole authority in foreign
relations, the 1987 Constitution expressly limits his ability in instances when it
involves the entry of foreign military bases, troops or facilities. The initial limitation is
found in Section 21 of the provisions on the Executive Department: "No treaty or
international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate." The specific limitation is given by
Section 25 of the Transitory Provisions, the full text of which reads as follows:

SECTION 25. After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be allowed in the Philippines except under
a treaty duly concurred in by the Senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State.

It is quite plain that the Transitory Provisions of the 1987 Constitution intended to
add to the basic requirements of a treaty under Section 21 of Article VII. This means
that both provisions must be read as additional limitations to the President's
overarching executive function in matters of defense and foreign relations.

3. The President, however, may enter into an executive agreement on foreign

military bases, troops, or facilities, if (a) it is not the instrument that allows the
presence of foreign military bases, troops, or facilities; or (b) it merely aims to
implement an existing law or treaty.

Again we refer to Section 25, Article XVIII of the Constitution:

SECTION 25. After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other
contracting State. (Emphases supplied)

In view of this provision, petitioners argue170 that EDCA must be in the form of a
"treaty" duly concurred in by the Senate. They stress that the Constitution is
unambigous in mandating the transmission to the Senate of all international
agreements concluded after the expiration of the MBA in 1991 - agreements that
concern the presence of foreign military bases, troops, or facilities in the country.
Accordingly, petitioners maintain that the Executive Department is not given the
choice to conclude agreements like EDCA in the form of an executive agreement.

This is also the view of the Senate, which, through a majority vote of 15 of its
members - with 1 against and 2 abstaining - says in SR 105171 that EDCA must be
submitted to the Senate in the form of a treaty for concurrence by at least two-thirds
of all its members.

The Senate cites two constitutional provisions (Article VI, Section 21 and Article
XVIII, Section 25) to support its position. Compared with the lone constitutional
provision that the Office of the Solicitor General (OSG) cites, which is Article XVIII,
Section 4(2), which includes the constitutionality of "executive agreement(s)" among
the cases subject to the Supreme Court's power of judicial review, the Constitution
clearly requires submission of EDCA to the Senate. Two specific provisions versus
one general provision means that the specific provisions prevail. The term "executive
agreement" is "a term wandering alone in the Constitution, bereft of provenance and
an unidentified constitutional mystery."

The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation even
added that the MDT, which the Executive claims to be partly implemented through
EDCA, is already obsolete.

There are two insurmountable obstacles to this Court's agreement with SR 105, as
well as with the comment on interpellation made by Senator Santiago.

First, the concept of "executive agreement" is so well-entrenched in this Court's

pronouncements on the powers of the President. When the Court validated the
concept of "executive agreement," it did so with full knowledge of the Senate's role in
concurring in treaties. It was aware of the problematique of distinguishing when an
international agreement needed Senate concurrence for validity, and when it did not;
and the Court continued to validate the existence of "executive agreements" even
after the 1987 Constitution.172 This follows a long line of similar decisions upholding
the power of the President to enter into an executive agreement.173

Second, the MDT has not been rendered obsolescent, considering that as late as
2009,174 this Court continued to recognize its validity.

Third, to this Court, a plain textual reading of Article XIII, Section 25, inevitably leads
to the conclusion that it applies only to a proposed agreement between our
government and a foreign government, whereby military bases, troops, or facilities of
such foreign government would be "allowed" or would "gain entry" Philippine
territory.

Note that the provision "shall not be allowed" is a negative injunction. This wording
signifies that the President is not authorized by law to allow foreign military bases,
troops, or facilities to enter the Philippines, except under a treaty concurred in by the
Senate. Hence, the constitutionally restricted authority pertains to the entry of the
bases, troops, or facilities, and not to the activities to be done after entry.

Under the principles of constitutional construction, of paramount consideration is the

plain meaning of the language expressed in the Constitution, or the verba legis rule.175 It
is presumed that the provisions have been carefully crafted in order to express the
objective it seeks to attain.176 It is incumbent upon the Court to refrain from going
beyond the plain meaning of the words used in the Constitution. It is presumed that
the framers and the people meant what they said when they said it, and that this
understanding was reflected in the Constitution and understood by the people in the
way it was meant to be understood when the fundamental law was ordained and
promulgated.177 As this Court has often said:

We look to the language of the document itself in our search for its meaning. We do
not of course stop there, but that is where we begin. It is to be assumed that the
words in which constitutional provisions are couched express the objective sought to
be attained. They are to be given their ordinary meaning except where technical
terms are employed in which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document, it being essential for
the rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be understood in the
sense they have in common use. What it says according to the text of the provision
to be construed compels acceptance and negates the power of the courts to alter
it, based on the postulate that the framers and the people mean what they say.
Thus, these are the cases where the need for construction is reduced to a
minimum.178(Emphases supplied)

It is only in those instances in which the constitutional provision is unclear,

ambiguous, or silent that further construction must be done to elicit its
meaning.179 In Ang Bagong Bayani-OFW v. Commission on Elections,180 we reiterated this
guiding principle:

it [is] safer to construe the Constitution from what appears upon its face. The
proper interpretation therefore depends more on how it was understood by the
people adopting it than in the framers' understanding thereof. (Emphases
supplied)

The effect of this statement is surprisingly profound, for, if taken literally, the phrase
"shall not be allowed in the Philippines" plainly refers to the entry of bases, troops, or
facilities in the country. The Oxford English Dictionary defines the word "allow" as a
transitive verb that means "to permit, enable"; "to give consent to the occurrence of
or relax restraint on (an action, event, or activity)"; "to consent to the presence or
attendance of (a person)"; and, when with an adverbial of place, "to permit (a person
or animal) to go, come, or be in, out, near, etc."181 Black's Law Dictionary defines the
term as one that means "[t]o grant, approve, or permit."182

The verb "allow" is followed by the word "in," which is a preposition used to indicate
"place or position in space or anything having material extension: Within the limits or
bounds of, within (any place or thing)."183 That something is the Philippines, which is
the noun that follows.

It is evident that the constitutional restriction refers solely to the initial entry of the
foreign military bases, troops, or facilities. Once entry is authorized, the subsequent
acts are thereafter subject only to the limitations provided by the rest of the
Constitution and Philippine law, and not to the Section 25 requirement of validity
through a treaty.

The VFA has already allowed the entry of troops in the Philippines. This Court stated
in Lim v. Executive Secretary:

After studied reflection, it appeared farfetched that the ambiguity surrounding the
meaning of the word "activities" arose from accident. In our view, it was deliberately
made that way to give both parties a certain leeway in negotiation. In this manner,
visiting US forces may sojourn in Philippine territory for purposes other than
military. As conceived, the joint exercises may include training on new techniques of
patrol and surveillance to protect the nation's marine resources, sea search-and-rescue
operations to assist vessels in distress, disaster relief operations, civic action projects
such as the building of school houses, medical and humanitarian missions, and the
like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is
only logical to assume that "Balikatan 02-1," a "mutual anti- terrorism advising,
assisting and training exercise," falls under the umbrella of sanctioned or allowable
activities in the context of the agreement. Both the history and intent of the Mutual
Defense Treaty and the VFA support the conclusion that combat-related activities -as
opposed to combat itself-such as the one subject of the instant petition, are indeed
authorized.184 (Emphasis supplied)

Moreover, the Court indicated that the Constitution continues to govern the conduct
of foreign military troops in the Philippines,185 readily implying the legality of their
initial entry into the country.

The OSG emphasizes that EDCA can be in the form of an executive agreement, since
it merely involves "adjustments in detail" in the implementation of the MDT and the
VFA.186 It points out that there are existing treaties between the Philippines and the
U.S. that have already been concurred in by the Philippine Senate and have thereby
met the requirements of the Constitution under Section 25. Because of the status of
these prior agreements, respondent emphasizes that EDCA need not be transmitted
to the Senate.

The aforecited Dissenting Opinion of Justice Brion disagrees with

the ponencia's application of verba legis construction to the words of Article XVIII,
Section 25.187 It claims that the provision is "neither plain, nor that simple."188 To
buttress its disagreement, the dissent states that the provision refers to a historical
incident, which is the expiration of the 1947 MBA.189 Accordingly, this position
requires questioning the circumstances that led to the historical event, and the
meaning of the terms under Article XVIII, Section 25.

This objection is quite strange. The construction technique of verba legis is not
inapplicable just because a provision has a specific historical context. In fact, every
provision of the Constitution has a specific historical context. The purpose of
constitutional and statutory construction is to set tiers of interpretation to guide the
Court as to how a particular provision functions. Verba legis is of paramount
consideration, but it is not the only consideration. As this Court has often said:
We look to the language of the document itself in our search for its meaning. We do
not of course stop there, but that is where we begin. It is to be assumed that the
words in which constitutional provisions are couched express the objective sought to
be attained. They are to be given their ordinary meaning except where technical
terms are employed in which case the significance thus attached to them prevails. As
the Constitution is not primarily a lawyer's document, it being essential for the rule of
law to obtain that it should ever be present in the people's consciousness, its
language as much as possible should be understood in the sense they have in
common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say. Thus, these are
the cases where the need for construction is reduced to a
minimum.190(Emphases supplied)

As applied, verba legis aids in construing the ordinary meaning of terms. In this case,
the phrase being construed is "shall not be allowed in the Philippines" and not the
preceding one referring to "the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities." It is explicit in the wording of the
provision itself that any interpretation goes beyond the text itself and into the
discussion of the framers, the context of the Constitutional Commission's time of
drafting, and the history of the 1947 MBA. Without reference to these factors, a
reader would not understand those terms. However, for the phrase "shall not be
allowed in the Philippines," there is no need for such reference. The law is clear. No
less than the Senate understood this when it ratified the VFA.

4. The President may generally enter into executive agreements subject to

limitations defined by the Constitution and may be in furtherance of a treaty
already concurred in by the Senate.

We discuss in this section why the President can enter into executive agreements.

It would be helpful to put into context the contested language found in Article XVIII,
Section 25. Its more exacting requirement was introduced because of the previous
experience of the country when its representatives felt compelled to consent to the
old MBA.191 They felt constrained to agree to the MBA in fulfilment of one of the
major conditions for the country to gain independence from the U.S.192 As a result of
that experience, a second layer of consent for agreements that allow military bases,
troops and facilities in the country is now articulated in Article XVIII of our present
Constitution.
This second layer of consent, however, cannot be interpreted in such a way that we
completely ignore the intent of our constitutional framers when they provided for that
additional layer, nor the vigorous statements of this Court that affirm the continued
existence of that class of international agreements called "executive agreements."

The power of the President to enter into binding executive agreements without Senate
concurrence is already well-established in this jurisdiction.193 That power has been
alluded to in our present and past Constitutions,194 in various statutes,195 in Supreme
Court decisions,196 and during the deliberations of the Constitutional
Commission.197 They cover a wide array of subjects with varying scopes and
purposes,198 including those that involve the presence of foreign military forces in the
country.199

As the sole organ of our foreign relations200 and the constitutionally assigned chief
architect of our foreign policy,201the President is vested with the exclusive power to
conduct and manage the country's interface with other states and governments. Being
the principal representative of the Philippines, the Chief Executive speaks and listens
for the nation; initiates, maintains, and develops diplomatic relations with other states
and governments; negotiates and enters into international agreements; promotes
trade, investments, tourism and other economic relations; and settles international
disputes with other states.202

As previously discussed, this constitutional mandate emanates from the inherent

power of the President to enter into agreements with other states, including the
prerogative to conclude binding executive agreements that do not require further
Senate concurrence. The existence of this presidential power203 is so well-entrenched
that Section 5(2)(a), Article VIII of the Constitution, even provides for a check on its
exercise. As expressed below, executive agreements are among those official
governmental acts that can be the subject of this Court's power of judicial review:

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the

law or the Rules of Court may provide, final judgments and orders of lower
courts in:

(a) All cases in which the constitutionality or

validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or
regulation is in question. (Emphases supplied)

In Commissioner of Customs v. Eastern Sea Trading, executive agreements are defined as

"international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a
more or less temporary nature."204 In Bayan Muna v. Romulo, this Court further clarified
that executive agreements can cover a wide array of subjects that have various scopes
and purposes.205 They are no longer limited to the traditional subjects that are usually
covered by executive agreements as identified in Eastern Sea Trading. The Court
thoroughly discussed this matter in the following manner:

The categorization of subject matters that may be covered by international

agreements mentioned in Eastern Sea Trading is not cast in stone. x x x.

As may be noted, almost half a century has elapsed since the Court rendered its
decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has
become more complex and the domain of international law wider, as to include
such subjects as human rights, the environment, and the sea. In fact, in the US alone,
the executive agreements executed by its President from 1980 to 2000 covered
subjects such as defense, trade, scientific cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms limitation, and nuclear safety,
among others. Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international
agreement format would be convenient to serve its best interest. As Francis
Sayre said in his work referred to earlier:

. . . It would be useless to undertake to discuss here the large variety of

executive agreements as such concluded from time to time. Hundreds of
executive agreements, other than those entered into under the trade-agreement act,
have been negotiated with foreign governments. . . . They cover such subjects as the
inspection of vessels, navigation dues, income tax on shipping profits, the admission
of civil air craft, custom matters and commercial relations generally, international
claims, postal matters, the registration of trademarks and copyrights, etc ....
(Emphases Supplied)

One of the distinguishing features of executive agreements is that their validity and
effectivity are not affected by a lack of Senate concurrence.206 This distinctive feature
was recognized as early as in Eastern Sea Trading (1961), viz:

Treaties are formal documents which require ratification with the approval of
two-thirds of the Senate. Executive agreements become binding through
executive action without the need of a vote by the Senate or by Congress.

xxxx
[T]he right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations, most-
favored-nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The validity of these has
never been seriously questioned by our courts. (Emphases Supplied)

That notion was carried over to the present Constitution. In fact, the framers
specifically deliberated on whether the general term "international agreement"
included executive agreements, and whether it was necessary to include an express
proviso that would exclude executive agreements from the requirement of Senate
concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the Court's
ruling in Eastern Sea Trading, the Constitutional Commission members ultimately
decided that the term "international agreements" as contemplated in Section 21,
Article VII, does not include executive agreements, and that a proviso is no longer
needed. Their discussion is reproduced below:207

MS. AQUINO: Madam President, first I would like a clarification from the
Committee. We have retained the words "international agreement" which I think is
the correct judgment on the matter because an international agreement is different
from a treaty. A treaty is a contract between parties which is in the nature of
international agreement and also a municipal law in the sense that the people are
bound. So there is a conceptual difference. However, I would like to be clarified if
the international agreements include executive agreements.

MR. CONCEPCION: That depends upon the parties. All parties to these
international negotiations stipulate the conditions which are necessary for the
agreement or whatever it may be to become valid or effective as regards the parties.

MS. AQUINO: Would that depend on the parties or would that depend on the nature
of the executive agreement? According to common usage, there are two types of
executive agreement: one is purely proceeding from an executive act which
affects external relations independent of the legislative and the other is
an executive act in pursuance of legislative authorization. The first kind might
take the form of just conventions or exchanges of notes or protocol while the
other, which would be pursuant to the legislative authorization, may be in
the nature of commercial agreements.
MR. CONCEPCION: Executive agreements are generally made to implement a
treaty already enforced or to determine the details for the implementation of
the treaty. We are speaking of executive agreements, not international agreements.

MS. AQUINO: I am in full agreement with that, except that it does not cover the first
kind of executive agreement which is just protocol or an exchange of notes and this
would be in the nature of reinforcement of claims of a citizen against a country, for
example.

MR. CONCEPCION: The Commissioner is free to require ratification for validity

insofar as the Philippines is concerned.

MS. AQUINO: It is my humble submission that we should provide, unless the

Committee explains to us otherwise, an explicit proviso which would except
executive agreements from the requirement of concurrence of two-thirds of the
Members of the Senate. Unless I am enlightened by the Committee I propose that
tentatively, the sentence should read. "No treaty or international agreement EXCEPT
EXECUTIVE AGREEMENTS shall be valid and effective."

FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in
Eastern Sea Trading] might help clarify this:

The right of the executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long
usage. From the earliest days of our history, we have entered into executive
agreements covering such subjects as commercial and consular relations, most favored
nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of this has never been
seriously questioned by our Courts.

Agreements with respect to the registration of trademarks have been concluded by the
executive of various countries under the Act of Congress of March 3, 1881 (21 Stat.
502) . . . International agreements involving political issues or changes of
national policy and those involving international agreements of a permanent
character usually take the form of treaties. But international agreements
embodying adjustments of detail, carrying out well established national policies
and traditions and those involving arrangements of a more or less temporary
nature usually take the form of executive agreements.

MR. ROMULO: Is the Commissioner, therefore, excluding the executive agreements?

FR. BERNAS: What we are referring to, therefore, when we say international
agreements which need concurrence by at least two-thirds are those which are
permanent in nature.

MS. AQUINO: And it may include commercial agreements which are executive
agreements essentially but which are proceeding from the authorization of Congress.
If that is our understanding, then I am willing to withdraw that amendment.

FR. BERNAS: If it is with prior authorization of Congress, then it does not need
subsequent concurrence by Congress.

MS. AQUINO: In that case, I am withdrawing my amendment.

MR. TINGSON: Madam President.

THE PRESIDENT: Is Commissioner Aquino satisfied?

MS. AQUINO: Yes. There is already an agreement among us on the definition of

"executive agreements" and that would make unnecessary any explicit proviso
on the matter.

xxx

MR. GUINGONA: I am not clear as to the meaning of "executive agreements"

because I heard that these executive agreements must rely on treaties. In other words,
there must first be treaties.

MR. CONCEPCION: No, I was speaking about the common use, as executive
agreements being the implementation of treaties, details of which do not affect the
sovereignty of the State.

MR. GUINGONA: But what about the matter of permanence, Madam President?
Would 99 years be considered permanent? What would be the measure of
permanency? I do not conceive of a treaty that is going to be forever, so there must
be some kind of a time limit.

MR. CONCEPCION: I suppose the Commissioner's question is whether this type of

agreement should be included in a provision of the Constitution requiring the
concurrence of Congress.
MR. GUINGONA: It depends on the concept of the executive agreement of which I
am not clear. If the executive agreement partakes of the nature of a treaty, then
it should also be included.

MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is within

the power of the Constitutional Commission to require that.

MR. GUINGONA: Yes. That is why I am trying to clarify whether the words
"international agreements" would include executive agreements.

MR. CONCEPCION: No, not necessarily; generally no.

xxx

MR. ROMULO: I wish to be recognized first. I have only one question. Do we take
it, therefore, that as far as the Committee is concerned, the term "international
agreements" does not include the term "executive agreements" as read by the
Commissioner in that text?

FR. BERNAS: Yes. (Emphases Supplied)

The inapplicability to executive agreements of the requirements under Section 21 was

again recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both
decided under the aegis of the present Constitution, quoted Eastern Sea Trading in
reiterating that executive agreements are valid and binding even without the
concurrence of the Senate.

Executive agreements may dispense with the requirement of Senate concurrence

because of the legal mandate with which they are concluded. As culled from the afore-
quoted deliberations of the Constitutional Commission, past Supreme Court
Decisions, and works of noted scholars,208 executive agreements merely involve
arrangements on the implementation of existing policies, rules, laws, or agreements.
They are concluded (1) to adjust the details of a treaty;209 (2) pursuant to or upon
confirmation by an act of the Legislature;210 or (3) in the exercise of the President's
independent powers under the Constitution.211 The raison d'etre of executive
agreements hinges on prior constitutional or legislative authorizations.

The special nature of an executive agreement is not just a domestic variation in

international agreements. International practice has accepted the use of various forms
and designations of international agreements, ranging from the traditional notion of a
treaty - which connotes a formal, solemn instrument - to engagements concluded in
modem, simplified forms that no longer necessitate ratification.212 An international
agreement may take different forms: treaty, act, protocol, agreement, concordat,
compromis d'arbitrage, convention, covenant, declaration, exchange of notes, statute,
pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other
form.213 Consequently, under international law, the distinction between a treaty and an
international agreement or even an executive agreement is irrelevant for purposes of
determining international rights and obligations.

However, this principle does not mean that the domestic law distinguishing treaties,
international agreements, and executive agreements is relegated to a mere variation in form, or
that the constitutional requirement of Senate concurrence is demoted to an optional
constitutional directive. There remain two very important features that
distinguish treaties from executive agreements and translate them into terms of art in the
domestic setting.

First, executive agreements must remain traceable to an express or implied

authorization under the Constitution, statutes, or treaties. The absence of these
precedents puts the validity and effectivity of executive agreements under serious
question for the main function of the Executive is to enforce the Constitution and the
laws enacted by the Legislature, not to defeat or interfere in the performance of these
rules.214 In turn, executive agreements cannot create new international obligations that
are not expressly allowed or reasonably implied in the law they purport to implement.

Second, treaties are, by their very nature, considered superior to executive agreements.
Treaties are products of the acts of the Executive and the Senate215 unlike executive
agreements, which are solely executive actions.216Because of legislative participation
through the Senate, a treaty is regarded as being on the same level as a statute.217 If
there is an irreconcilable conflict, a later law or treaty takes precedence over one that
is prior.218 An executive agreement is treated differently. Executive agreements that
are inconsistent with either a law or a treaty are considered ineffective.219 Both types
of international agreement are nevertheless subject to the supremacy of the
Constitution.220

This rule does not imply, though, that the President is given carte blanche to exercise
this discretion. Although the Chief Executive wields the exclusive authority to
conduct our foreign relations, this power must still be exercised within the context
and the parameters set by the Constitution, as well as by existing domestic and
international laws. There are constitutional provisions that restrict or limit the
President's prerogative in concluding international agreements, such as those that
involve the following:

a. The policy of freedom from nuclear weapons within Philippine territory221

 b. The fixing of tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts, which must be pursuant to the authority
granted by Congress222

c. The grant of any tax exemption, which must be pursuant to a law concurred
in by a majority of all the Members of Congress223

d. The contracting or guaranteeing, on behalf of the Philippines, of foreign

loans that must be previously concurred in by the Monetary Board224

e. The authorization of the presence of foreign military bases, troops, or

facilities in the country must be in the form of a treaty duly concurred in by the
Senate.225

f. For agreements that do not fall under paragraph 5, the concurrence of the
Senate is required, should the form of the government chosen be a treaty.

5. The President had the choice to enter into EDCA by way of an executive
agreement or a treaty.

No court can tell the President to desist from choosing an executive agreement over a
treaty to embody an international agreement, unless the case falls squarely within
Article VIII, Section 25.

As can be gleaned from the debates among the members of the Constitutional
Commission, they were aware that legally binding international agreements were being
entered into by countries in forms other than a treaty. At the same time, it is clear that
they were also keen to preserve the concept of "executive agreements" and the right
of the President to enter into such agreements.

What we can glean from the discussions of the Constitutional Commissioners is that
they understood the following realities:

1. Treaties, international agreements, and executive agreements are all

constitutional manifestations of the conduct of foreign affairs with their
distinct legal characteristics.

a. Treaties are formal contracts between the Philippines and other States-
parties, which are in the nature of international agreements, and also of
municipal laws in the sense of their binding nature.226
 b. International agreements are similar instruments, the provisions of
which may require the ratification of a designated number of parties
thereto. These agreements involving political issues or changes in
national policy, as well as those involving international agreements of a
permanent character, usually take the form of treaties. They may also
include commercial agreements, which are executive agreements
essentially, but which proceed from previous authorization by Congress,
thus dispensing with the requirement of concurrence by the Senate.227

c. Executive agreements are generally intended to implement a treaty

already enforced or to determine the details of the implementation
thereof that do not affect the sovereignty of the State.228

2. Treaties and international agreements that cannot be mere executive

agreements must, by constitutional decree, be concurred in by at least two-
thirds of the Senate.

3. However, an agreement - the subject of which is the entry of foreign military

troops, bases, or facilities - is particularly restricted. The requirements are that it
be in the form of a treaty concurred in by the Senate; that when Congress so
requires, it be ratified by a majority of the votes cast by the people in a national
referendum held for that purpose; and that it be recognized as a treaty by the
other contracting State.

4. Thus, executive agreements can continue to exist as a species of international

agreements.

That is why our Court has ruled the way it has in several cases.

In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her
constitutional authority and discretion when she chose to enter into the RP-U.S. Non-
Surrender Agreement in the form of an executive agreement, instead of a treaty, and
in ratifying the agreement without Senate concurrence. The Court en banc discussed
this intrinsic presidential prerogative as follows:

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it
does of the nature of a treaty; hence, it must be duly concurred in by the Senate. x x x
x. Pressing its point, petitioner submits that the subject of the Agreement does not fall
under any of the subject-categories that xx x may be covered by an executive
agreement, such as commercial/consular relations, most-favored nation rights, patent
rights, trademark and copyright protection, postal and navigation arrangements and
settlement of claims.

The categorization of subject matters that may be covered by international agreements

mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast
rules on the propriety of entering, on a given subject, into a treaty or an
executive agreement as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties' intent and
desire to craft an international agreement in the form they so wish to further
their respective interests. Verily, the matter of form takes a back seat when it
comes to effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each labor under
the pacta sunt servanda principle.

xxxx

But over and above the foregoing considerations is the fact that - save for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution - when
a treaty is required, the Constitution does not classify any subject, like that
involving political issues, to be in the form of, and ratified as, a treaty. What the
Constitution merely prescribes is that treaties need the concurrence of the Senate by a
vote defined therein to complete the ratification process.

xxxx

x x x. As the President wields vast powers and influence, her conduct in the external
affairs of the nation is, as Bayan would put it, "executive altogether." The right of the
President to enter into or ratify binding executive agreements has been
confirmed by long practice.

In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then

President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign
Affairs, acted within the scope of the authority and discretion vested in her by
the Constitution. At the end of the day, the President - by ratifying, thru her
deputies, the non-surrender agreement - did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her
office. (Emphases supplied)

Indeed, in the field of external affairs, the President must be given a larger measure of
authority and wider discretion, subject only to the least amount of checks and
restrictions under the Constitution.229 The rationale behind this power and discretion
was recognized by the Court in Vinuya v. Executive Secretary, cited earlier.230

Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of

International Agreements and its Ratification, thus, correctly reflected the inherent
powers of the President when it stated that the DFA "shall determine whether an
agreement is an executive agreement or a treaty."

Accordingly, in the exercise of its power of judicial review, the Court does not look
into whether an international agreement should be in the form of a treaty or an
executive agreement, save in cases in which the Constitution or a statute requires
otherwise. Rather, in view of the vast constitutional powers and prerogatives granted
to the President in the field of foreign affairs, the task of the Court is to determine
whether the international agreement is consistent with the applicable limitations.

6. Executive agreements may cover the matter of foreign military forces if it

merely involves detail adjustments.

The practice of resorting to executive agreements in adjusting the details of a law or a

treaty that already deals with the presence of foreign military forces is not at all
unusual in this jurisdiction. In fact, the Court has already implicitly acknowledged this
practice in Lim v. Executive Secretary.231 In that case, the Court was asked to scrutinize
the constitutionality of the Terms of Reference of the Balikatan 02-1 joint military
exercises, which sought to implement the VFA. Concluded in the form of an
executive agreement, the Terms of Reference detailed the coverage of the term
"activities" mentioned in the treaty and settled the matters pertaining to the
construction of temporary structures for the U.S. troops during the activities; the
duration and location of the exercises; the number of participants; and the extent of
and limitations on the activities of the U.S. forces. The Court upheld the Terms of
Reference as being consistent with the VFA. It no longer took issue with the fact that
the Balikatan Terms of Reference was not in the form of a treaty concurred in by the
Senate, even if it dealt with the regulation of the activities of foreign military forces on
Philippine territory.

In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an executive
agreement in an attempt to adjust the details of a provision of the VFA. The
Philippines and the U.S. entered into the Romulo-Kenney Agreement, which
undertook to clarify the detention of a U.S. Armed Forces member, whose case was
pending appeal after his conviction by a trial court for the crime of rape. In testing the
validity of the latter agreement, the Court precisely alluded to one of the inherent
limitations of an executive agreement: it cannot go beyond the terms of the treaty it
purports to implement. It was eventually ruled that the Romulo-Kenney Agreement
was "not in accord" with the VFA, since the former was squarely inconsistent with a
provision in the treaty requiring that the detention be "by Philippine authorities."
Consequently, the Court ordered the Secretary of Foreign Affairs to comply with the
VFA and "forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided
in Art. V, Sec. 10 of the VFA. "233

Culling from the foregoing discussions, we reiterate the following pronouncements to

guide us in resolving the present controversy:

1. Section 25, Article XVIII of the Constitution, contains stringent

requirements that must be fulfilled by the international agreement allowing the
presence of foreign military bases, troops, or facilities in the Philippines: (a) the
agreement must be in the form of a treaty, and (b) it must be duly concurred in
by the Senate.

2. If the agreement is not covered by the above situation, then the President
may choose the form of the agreement (i.e., either an executive agreement or a
treaty), provided that the agreement dealing with foreign military bases, troops,
or facilities is not the principal agreement that first allows their entry or
presence in the Philippines.

3. The executive agreement must not go beyond the parameters, limitations,

and standards set by the law and/or treaty that the former purports to
implement; and must not unduly expand the international obligation expressly
mentioned or necessarily implied in the law or treaty.

4. The executive agreement must be consistent with the Constitution, as well as

with existing laws and treaties.

In light of the President's choice to enter into EDCA in the form of an executive
agreement, respondents carry the burden of proving that it is a mere implementation
of existing laws and treaties concurred in by the Senate. EDCA must thus be carefully
dissected to ascertain if it remains within the legal parameters of a valid executive
agreement.

7. EDCA is consistent with the content, purpose, and framework of the MDT
and the VFA

The starting point of our analysis is the rule that "an executive agreement xx x may
not be used to amend a treaty."234 In Lim v. Executive Secretary and in Nicolas v.
Romulo, the Court approached the question of the validity of executive agreements by
comparing them with the general framework and the specific provisions of the treaties
they seek to implement.

In Lim, the Terms of Reference of the joint military exercises was scrutinized by
studying "the framework of the treaty antecedents to which the Philippines bound
itself,"235 i.e., the MDT and the VFA. The Court proceeded to examine the extent of
the term "activities" as contemplated in Articles 1236 and II237 of the VFA. It later on
found that the term "activities" was deliberately left undefined and ambiguous in
order to permit "a wide scope of undertakings subject only to the approval of the
Philippine government"238 and thereby allow the parties "a certain leeway in
negotiation."239 The Court eventually ruled that the Terms of Reference fell within the
sanctioned or allowable activities, especially in the context of the VFA and the MDT.

The Court applied the same approach to Nicolas v. Romulo. It studied the provisions of
the VFA on custody and detention to ascertain the validity of the Romulo-Kenney
Agreement.240 It eventually found that the two international agreements were not in
accord, since the Romulo-Kenney Agreement had stipulated that U.S. military
personnel shall be detained at the U.S. Embassy Compound and guarded by U.S.
military personnel, instead of by Philippine authorities. According to the Court, the
parties "recognized the difference between custody during the trial and detention after
conviction."241 Pursuant to Article V(6) of the VFA, the custody of a U.S. military
personnel resides with U.S. military authorities during trial. Once there is a finding of
guilt, Article V(l0) requires that the confinement or detention be "by Philippine
authorities."

Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA "substantially
modifies or amends the VFA"242and follows with an enumeration of the differences
between EDCA and the VFA. While these arguments will be rebutted more fully
further on, an initial answer can already be given to each of the concerns raised by his
dissent.

The first difference emphasized is that EDCA does not only regulate visits as the
VFA does, but allows temporary stationing on a rotational basis of U.S. military
personnel and their contractors in physical locations with permanent facilities and pre-
positioned military materiel.

This argument does not take into account that these permanent facilities, while built
by U.S. forces, are to be owned by the Philippines once constructed.243 Even the VFA
allowed construction for the benefit of U.S. forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows the prepositioning of
military materiel, which can include various types of warships, fighter planes,
bombers, and vessels, as well as land and amphibious vehicles and their corresponding
ammunition.244

However, the VFA clearly allows the same kind of equipment, vehicles, vessels, and
aircraft to be brought into the country. Articles VII and VIII of the VFA
contemplates that U.S. equipment, materials, supplies, and other property are
imported into or acquired in the Philippines by or on behalf of the U.S. Armed
Forces; as are vehicles, vessels, and aircraft operated by or for U.S. forces in
connection with activities under the VFA. These provisions likewise provide for the
waiver of the specific duties, taxes, charges, and fees that correspond to these
equipment.

The third difference adverted to by the Justice Leonen's dissent is that the VFA
contemplates the entry of troops for training exercises, whereas EDCA allows the use
of territory for launching military and paramilitary operations conducted in other
states.245 The dissent of Justice Teresita J. Leonardo-De Castro also notes that VFA
was intended for non-combat activides only, whereas the entry and activities of U.S.
forces into Agreed Locations were borne of military necessity or had a martial
character, and were therefore not contemplated by the VFA.246

This Court's jurisprudence however established in no uncertain terms that combat-

related activities, as opposed to actual combat, were allowed under the MDT and
VFA, viz:

Both the history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities as opposed to combat itself such as the one
subject of the instant petition, are indeed authorized.247

Hence, even if EDCA was borne of military necessity, it cannot be said to have
strayed from the intent of the VFA since EDCA's combat-related components are
allowed under the treaty.

Moreover, both the VFA and EDCA are silent on what these activities actually are.
Both the VFA and EDCA deal with the presence of U.S. forces within the
Philippines, but make no mention of being platforms for activity beyond Philippine
territory. While it may be that, as applied, military operations under either the VFA or
EDCA would be carried out in the future the scope of judicial review does not cover
potential breaches of discretion but only actual occurrences or blatantly illegal
provisions. Hence, we cannot invalidate EDCA on the basis of the potentially abusive
use of its provisions.

The fourth difference is that EDCA supposedly introduces a new concept not
contemplated in the VFA or the MDT: Agreed Locations, Contractors, Pre-
positioning, and Operational Control.248

As previously mentioned, these points shall be addressed fully and individually in the
latter analysis of EDCA's provisions. However, it must already be clarified that the
terms and details used by an implementing agreement need not be found in the
mother treaty. They must be sourced from the authority derived from the treaty, but
are not necessarily expressed word-for-word in the mother treaty. This concern shall
be further elucidated in this Decision.

The fifth difference highlighted by the Dissenting Opinion is that the VFA does not
have provisions that may be construed as a restriction on or modification of
obligations found in existing statues, including the jurisdiction of courts, local
autonomy, and taxation. Implied in this argument is that EDCA contains such
restrictions or modifications.249

This last argument cannot be accepted in view of the clear provisions of EDCA. Both
the VFA and EDCA ensure Philippine jurisdiction in all instances contemplated by
both agreements, with the exception of those outlined by the VFA in Articles III-VI.
In the VFA, taxes are clearly waived whereas in EDCA, taxes are assumed by the
government as will be discussed later on. This fact does not, therefore, produce a
diminution of jurisdiction on the part of the Philippines, but rather a recognition of
sovereignty and the rights that attend it, some of which may be waived as in the cases
under Articles III-VI of the VFA.

Taking off from these concerns, the provisions of EDCA must be compared with
those of the MDT and the VFA, which are the two treaties from which EDCA
allegedly draws its validity.

"Authorized presence" under the VFA versus "authorized activities" under

EDCA: (1) U.S. personnel and (2) U.S. contractors

The OSG argues250 that EDCA merely details existing policies under the MDT and
the VFA. It explains that EDCA articulates the principle of defensive preparation embodied
in Article II of the MDT; and seeks to enhance the defensive, strategic, and
technological capabilities of both parties pursuant to the objective of the treaty to
strengthen those capabilities to prevent or resist a possible armed attack. Respondent
also points out that EDCA simply implements Article I of the VFA, which already
allows the entry of U.S. troops and personnel into the country. Respondent stresses
this Court's recognition in Lim v. Executive Secretary that U.S. troops and personnel are
authorized to conduct activities that promote the goal of maintaining and developing
their defense capability.

Petitioners contest251 the assertion that the provisions of EDCA merely implement
the MDT. According to them, the treaty does not specifically authorize the entry of
U.S. troops in the country in order to maintain and develop the individual and
collective capacities of both the Philippines and the U.S. to resist an armed attack.
They emphasize that the treaty was concluded at a time when there was as yet no
specific constitutional prohibition on the presence of foreign military forces in the
country.

Petitioners also challenge the argument that EDCA simply implements the VFA.
They assert that the agreement covers only short-term or temporary visits of U.S. troops
"from time to time" for the specific purpose of combined military exercises with their
Filipino counterparts. They stress that, in contrast, U.S. troops are allowed under
EDCA to perform activities beyond combined military exercises, such as those
enumerated in Articles 111(1) and IV(4) thereof. Furthermore, there is some degree of
permanence in the presence of U.S. troops in the country, since the effectivity of
EDCA is continuous until terminated. They proceed to argue that while troops have a
"rotational" presence, this scheme in fact fosters their permanent presence.

a. Admission of U.S. military and civilian personnel into Philippine territory is already allowed
under the VFA

We shall first deal with the recognition under EDCA of the presence in the country of
three distinct classes of individuals who will be conducting different types of activities
within the Agreed Locations: (1) U.S. military personnel; (2) U.S. civilian personnel;
and (3) U.S. contractors. The agreement refers to them as follows:

"United States personnel" means United States military and civilian personnel
temporarily in the territory of the Philippines in connection with activities
approved by the Philippines, as those terms are defined in the VFA.252

"United States forces" means the entity comprising United States personnel and
all property, equipment, and materiel of the United States Armed Forces present in
the territory of the Philippines.253
"United States contractors" means companies and firms, and their employees,
under contract or subcontract to or on behalf of the United States Department of
Defense. United States contractors are not included as part of the definition
of United States personnel in this Agreement, including within the context of the
VFA.254

United States forces may contract for any materiel, supplies, equipment, and
services (including construction) to be furnished or undertaken in the territory of the
Philippines without restriction as to choice of contractor, supplier, or person who
provides such materiel, supplies, equipment, or services. Such contracts shall be
solicited, awarded, and administered in accordance with the laws and regulations of
the United States.255 (Emphases Supplied)

A thorough evaluation of how EDCA is phrased clarities that the agreement

does not deal with the entry into the country of U.S. personnel and
contractors per se. While Articles I(l)(b)256 and II(4)257 speak of "the right to access
and use" the Agreed Locations, their wordings indicate the presumption that these
groups have already been allowed entry into Philippine territory, for which, unlike the
VFA, EDCA has no specific provision. Instead, Article II of the latter simply alludes
to the VFA in describing U.S. personnel, a term defined under Article I of the treaty as
follows:

As used in this Agreement, "United States personnel" means United States military
and civilian personnel temporarily in the Philippines in connection with activities
approved by the Philippine Government. Within this definition:

1. The term "military personnel" refers to military members of

the United States Army, Navy, Marine Corps, Air Force, and Coast
Guard.

2. The term "civilian personnel" refers to individuals who are neither

nationals of nor ordinarily resident in the Philippines and who
are employed by the United States armed forces or who are
accompanying the United States armed forces, such as employees of
the American Red Cross and the United Services Organization.258

Article II of EDCA must then be read with Article III of the VFA, which provides
for the entry accommodations to be accorded to U.S. military and civilian personnel:
 1. The Government of the Philippines shall facilitate the admission of
United States personnel and their departure from the Philippines in
connection with activities covered by this agreement.

2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.

3. The following documents only, which shall be required in respect of United

States military personnel who enter the Philippines; xx xx.

4. United States civilian personnel shall be exempt from visa requirements

but shall present, upon demand, valid passports upon entry and departure
of the Philippines. (Emphases Supplied)

By virtue of Articles I and III of the VFA, the Philippines already allows U.S. military
and civilian personnel to be "temporarily in the Philippines," so long as their presence
is "in connection with activities approved by the Philippine Government." The
Philippines, through Article III, even guarantees that it shall facilitate the admission of
U.S. personnel into the country and grant exemptions from passport and visa
regulations. The VFA does not even limit their temporary presence to specific
locations.

Based on the above provisions, the admission and presence of U.S. military and
civilian personnel in Philippine territory are already allowed under the VFA,
the treaty supposedly being implemented by EDCA. What EDCA has effectively
done, in fact, is merely provide the mechanism to identify the locations in which U.S.
personnel may perform allowed activities pursuant to the VFA. As the implementing
agreement, it regulates and limits the presence of U.S. personnel in the country.

b. EDCA does not provide the legal basis for admission of U.S. contractors into Philippine territory;
their entry must be sourced from extraneous Philippine statutes and regulations for the admission of
alien employees or business persons.

Of the three aforementioned classes of individuals who will be conducting certain

activities within the Agreed Locations, we note that only U.S. contractors are not
explicitly mentioned in the VFA. This does not mean, though, that the recognition of
their presence under EDCA is ipso facto an amendment of the treaty, and that there
must be Senate concurrence before they are allowed to enter the country.

Nowhere in EDCA are U.S. contractors guaranteed immediate admission into the
Philippines. Articles III and IV, in fact, merely grant them the right of access to, and
the authority to conduct certain activities within the Agreed Locations. Since Article
II(3) of EDCA specifically leaves out U.S. contractors from the coverage of the VFA,
they shall not be granted the same entry accommodations and privileges as those
enjoyed by U.S. military and civilian personnel under the VFA.

Consequently, it is neither mandatory nor obligatory on the part of the Philippines to

admit U.S. contractors into the country.259 We emphasize that the admission of aliens
into Philippine territory is "a matter of pure permission and simple tolerance which
creates no obligation on the part of the government to permit them to stay."260 Unlike
U.S. personnel who are accorded entry accommodations, U.S. contractors are subject
to Philippine immigration laws.261The latter must comply with our visa and passport
regulations262 and prove that they are not subject to exclusion under any provision of
Philippine immigration laws.263 The President may also deny them entry pursuant to
his absolute and unqualified power to prohibit or prevent the admission of aliens
whose presence in the country would be inimical to public interest.264

In the same vein, the President may exercise the plenary power to expel or deport
U.S. contractors265 as may be necessitated by national security, public safety, public
health, public morals, and national interest.266 They may also be deported if they are
found to be illegal or undesirable aliens pursuant to the Philippine Immigration
Act267 and the Data Privacy Act.268 In contrast, Article 111(5) of the VFA requires a
request for removal from the Philippine government before a member of the U.S.
personnel may be "dispos[ed] xx x outside of the Philippines."

c. Authorized activities of U.S. military and civilian personnel within Philippine territory are in
furtherance of the MDT and the VFA

We begin our analysis by quoting the relevant sections of the MDT and the VFA that
pertain to the activities in which U.S. military and civilian personnel may engage:

MUTUAL DEFENSE TREATY

Article II

In order more effectively to achieve the objective of this Treaty, the Parties separately
and jointly by self-help and mutual aid will maintain and develop their individual
and collective capacity to resist armed attack.

Article III

The Parties, through their Foreign Ministers or their deputies, will consult
together from time to time regarding the implementation of this Treaty and
whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external armed
attack in the Pacific.

VISITING FORCES AGREEMENT

Preamble

xxx

Reaffirming their obligations under the Mutual Defense Treaty of August 30,
1951;

Noting that from time to time elements of the United States armed forces may visit
the Republic of the Philippines;

Considering that cooperation between the United States and the Republic of the
Philippines promotes their common security interests;

xxx

Article I - Definitions

As used in this Agreement, "United States personnel" means United States military
and civilian personnel temporarily in the Philippines in connection with activities
approved by the Philippine Government. Within this definition: xx x

Article II - Respect for Law

It is the duty of United States personnel to respect the laws of the Republic of
the Philippines and to abstain from any activity inconsistent with the spirit of
this agreement, and, in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within its authority to ensure
that this is done.

Article VII - Importation and Exportation

1. United States Government equipment, materials, supplies, and other property

imported into or acquired in the Philippines by or on behalf of the United States
armed forces in connection with activities to which this agreement applies, shall
be free of all Philippine duties, taxes and other similar charges. Title to such property
shall remain with the United States, which may remove such property from the
Philippines at any time, free from export duties, taxes, and other similar charges. x x x.
 Article VIII - Movement of Vessels and Aircraft

1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in accordance
with procedures stipulated in implementing arrangements.

2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The movement
of vessels shall be in accordance with international custom and practice
governing such vessels, and such agreed implementing arrangements as
necessary. x x x (Emphases Supplied)

Manifest in these provisions is the abundance of references to the creation of further

"implementing arrangements" including the identification of "activities [to be]
approved by the Philippine Government." To determine the parameters of these
implementing arrangements and activities, we referred to the content, purpose, and
framework of the MDT and the VFA.

By its very language, the MDT contemplates a situation in which both countries shall
engage in joint activities, so that they can maintain and develop their defense
capabilities. The wording itself evidently invites a reasonable construction that
the joint activities shall involve joint military trainings, maneuvers, and exercises. Both
the interpretation269 and the subsequent practice270 of the parties show that the MDT
independently allows joint military exercises in the country. Lim v. Executive
Secretary271 and Nicolas v. Romulo272 recognized that Balikatan exercises, which are
activities that seek to enhance and develop the strategic and technological capabilities
of the parties to resist an armed attack, "fall squarely under the provisions of the RP-
US MDT."273 In Lim, the Court especially noted that the Philippines and the U.S.
continued to conduct joint military exercises even after the expiration of the MBA
and even before the conclusion of the VFA.274 These activities presumably related to
the Status of Forces Agreement, in which the parties agreed on the status to be
accorded to U.S. military and civilian personnel while conducting activities in the
Philippines in relation to the MDT.275

Further, it can be logically inferred from Article V of the MDT that

these joint activities may be conducted on Philippine or on U.S. soil. The article
expressly provides that the term armed attack includes "an armed attack on
the metropolitan territory of either of the Parties, or on the island territories under
its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in
the Pacific." Surely, in maintaining and developing our defense capabilities, an
assessment or training will need to be performed, separately and jointly by self-help
and mutual aid, in the territories of the contracting parties. It is reasonable to
conclude that the assessment of defense capabilities would entail understanding the
terrain, wind flow patterns, and other environmental factors unique to the Philippines.

It would also be reasonable to conclude that a simulation of how to respond to

attacks in vulnerable areas would be part of the training of the parties to maintain and
develop their capacity to resist an actual armed attack and to test and validate the
defense plan of the Philippines. It is likewise reasonable to imagine that part of the
training would involve an analysis of the effect of the weapons that may be used and
how to be prepared for the eventuality. This Court recognizes that all of this may
require training in the area where an armed attack might be directed at the Philippine
territory.

The provisions of the MDT must then be read in conjunction with those of the VFA.

Article I of the VFA indicates that the presence of U.S. military and civilian personnel
in the Philippines is "in connection with activities approved by the Philippine
Government." While the treaty does not expressly enumerate or detail the nature of
activities of U.S. troops in the country, its Preamble makes explicit references to the
reaffirmation of the obligations of both countries under the MDT. These obligations
include the strengthening of international and regional security in the Pacific area and
the promotion of common security interests.

The Court has already settled in Lim v. Executive Secretary that the phrase "activities
approved by the Philippine Government" under Article I of the VFA was intended to
be ambiguous in order to afford the parties flexibility to adjust the details of the
purpose of the visit of U.S. personnel.276 In ruling that the Terms of Reference for
the Balikatan Exercises in 2002 fell within the context of the treaty, this Court
explained:

After studied reflection, it appeared farfetched that the ambiguity surrounding the
meaning of the word "activities" arose from accident. In our view, it
was deliberately made that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces may sojourn in Philippine
territory for purposes other than military. As conceived, the joint exercises may
include training on new techniques of patrol and surveillance to protect the nation's
marine resources, sea search-and-rescue operations to assist vessels in distress, disaster
relief operations, civic action projects such as the building of school houses, medical
and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It
is only logical to assume that "Balikatan 02-1," a "mutual anti-terrorism
advising, assisting and training exercise," falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the conclusion
that combat-related activities - as opposed to combat itself- such as the one subject of
the instant petition, are indeed authorized. (Emphases Supplied)

The joint report of the Senate committees on foreign relations and on national
defense and security further explains the wide range and variety of activities
contemplated in the VFA, and how these activities shall be identified:277

These joint exercises envisioned in the VFA are not limited to combat-related
activities; they have a wide range and variety. They include exercises that will
reinforce the AFP's ability to acquire new techniques of patrol and surveillance to
protect the country's maritime resources; sea-search and rescue operations to assist
ships in distress; and disaster-relief operations to aid the civilian victims of natural
calamities, such as earthquakes, typhoons and tidal waves.

xxxx

Joint activities under the VFA will include combat maneuvers; training in aircraft
maintenance and equipment repair; civic-action projects; and consultations and
meetings of the Philippine-U.S. Mutual Defense Board. It is at the level of the
Mutual Defense Board-which is headed jointly by the Chief of Staff of the AFP and
the Commander in Chief of the U.S. Pacific Command-that the VFA exercises are
planned. Final approval of any activity involving U.S. forces is,
however, invariably given by the Philippine Government.

xxxx

Siazon clarified that it is not the VFA by itself that determines what activities will
be conducted between the armed forces of the U.S. and the Philippines. The VFA
regulates and provides the legal framework for the presence, conduct and legal
status of U.S. personnel while they are in the country for visits, joint exercises and
other related activities. (Emphases Supplied)

What can be gleaned from the provisions of the VFA, the joint report of the
Senate committees on foreign relations and on national defense and security,
and the ruling of this Court in Lim is that the "activities" referred to in the
treaty are meant to be specified and identified infurther agreements. EDCA is
one such agreement.

EDCA seeks to be an instrument that enumerates the Philippine-approved activities

of U.S. personnel referred to in the VFA. EDCA allows U.S. military and civilian
personnel to perform "activities approved by the Philippines, as those terms are
defined in the VFA"278 and clarifies that these activities include those conducted
within the Agreed Locations:

1. Security cooperation exercises; joint and combined training activities; humanitarian

assistance and disaster relief activities; and such other activities as may be agreed upon
by the Parties279

2. Training; transit; support and related activities; refueling of aircraft; bunkering of

vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment,
supplies, and materiel; deployment of forces and materiel; and such other activities as
the Parties may agree280

3. Exercise of operational control over the Agreed Locations for construction

activities and other types of activity, including alterations and improvements thereof281

4. Exercise of all rights and authorities within the Agreed Locations that are necessary
for their operational control or defense, including the adoption of apfropriate
measures to protect U.S. forces and contractors282

5. Use of water, electricity, and other public utilities283

6. Operation of their own telecommunication systems, including the utilization of

such means and services as are required to ensure the full ability to operate
telecommunication systems, as well as the use of the necessary radio spectrum
allocated for this purpose284

According to Article I of EDCA, one of the purposes of these activities is to maintain

and develop, jointly and by mutual aid, the individual and collective capacities of both
countries to resist an armed attack. It further states that the activities are in
furtherance of the MDT and within the context of the VFA.

We note that these planned activities are very similar to those under the Terms of
Reference285 mentioned in Lim. Both EDCA and the Terms of Reference authorize
the U.S. to perform the following: (a) participate in training exercises; (b) retain
command over their forces; (c) establish temporary structures in the country; (d) share
in the use of their respective resources, equipment and other assets; and (e) exercise
their right to self-defense. We quote the relevant portion of the Terms and Conditions
as follows:286

I. POLICY LEVEL

xxxx

No permanent US basing and support facilities shall be established. Temporary

structures such as those for troop billeting, classroom instruction and messing
may be set up for use by RP and US Forces during the Exercise.

The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under

the authority of the Chief of Staff, AFP. In no instance will US Forces operate
independently during field training exercises (FTX). AFP and US Unit
Commanders will retain command over their respective forces under the
overall authority of the Exercise Co-Directors. RP and US participants shall
comply with operational instructions of the AFP during the FTX.

The exercise shall be conducted and completed within a period of not more than six
months, with the projected participation of 660 US personnel and 3,800 RP Forces.
The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and
terminate the Exercise and other activities within the six month Exercise period.

The Exercise is a mutual counter-terrorism advising, assisting and training

Exercise relative to Philippine efforts against the ASG, and will be conducted on the
Island of Basilan. Further advising, assisting and training exercises shall be conducted
in Malagutay and the Zamboanga area. Related activities in Cebu will be for support
of the Exercise.

xx xx.

US exercise participants shall not engage in combat, without prejudice to their

right of self-defense.

These terms of Reference are for purposes of this Exercise only and do not create
additional legal obligations between the US Government and the Republic of the
Philippines.

II. EXERCISE LEVEL

1. TRAINING
 a. The Exercise shall involve the conduct of mutual military assisting,
advising and training of RP and US Forces with the primary objective
of enhancing the operational capabilities of both forces to combat
terrorism.

b. At no time shall US Forces operate independently within RP

territory.

c. Flight plans of all aircraft involved in the exercise will comply with the
local air traffic regulations.

2. ADMINISTRATION & LOGISTICS

xxxx

a. RP and US participating forces may share, in accordance with their respective laws
and regulations, in the use of their resources, equipment and other assets. They
will use their respective logistics channels. x x x. (Emphases Supplied)

After a thorough examination of the content, purpose, and framework of the MDT
and the VFA, we find that EDCA has remained within the parameters set in these
two treaties. Just like the Terms of Reference mentioned in Lim, mere adjustments in
detail to implement the MDT and the VFA can be in the form of executive
agreements.

Petitioners assert287 that the duration of the activities mentioned in EDCA is no

longer consistent with the temporary nature of the visits as contemplated in the VFA.
They point out that Article XII(4) of EDCA has an initial term of 10 years, a term
automatically renewed unless the Philippines or the U.S. terminates the agreement.
According to petitioners, such length of time already has a badge of permanency.

In connection with this, Justice Teresita J. Leonardo-De Castro likewise argues in her
Concurring and Dissenting Opinion that the VFA contemplated mere temporary
visits from U.S. forces, whereas EDCA allows an unlimited period for U.S. forces to
stay in the Philippines.288

However, the provisions of EDCA directly contradict this argument by limiting itself
to 10 years of effectivity. Although this term is automatically renewed, the process for
terminating the agreement is unilateral and the right to do so automatically accrues at
the end of the 10 year period. Clearly, this method does not create a permanent
obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been by
chance that the VFA does not include a maximum time limit with respect to the
presence of U.S. personnel in the country. We construe this lack of specificity as a
deliberate effort on the part of the Philippine and the U.S. governments to leave out
this aspect and reserve it for the "adjustment in detail" stage of the implementation of
the treaty. We interpret the subsequent, unconditional concurrence of the Senate in
the entire text of the VFA as an implicit grant to the President of a margin of
appreciation in determining the duration of the "temporary" presence of U.S.
personnel in the country.

Justice Brion's dissent argues that the presence of U.S. forces under EDCA is "more
permanent" in nature.289However, this argument has not taken root by virtue of a
simple glance at its provisions on the effectivity period. EDCA does not grant
permanent bases, but rather temporary rotational access to facilities for efficiency. As
Professor Aileen S.P. Baviera notes:

The new EDCA would grant American troops, ships and planes rotational access to
facilities of the Armed Forces of the Philippines but not permanent bases which are
prohibited under the Philippine Constitution - with the result of reducing response
time should an external threat from a common adversary crystallize.290

EDCA is far from being permanent in nature compared to the practice of states as
shown in other defense cooperation agreements. For example, Article XIV(l) of the
U.S.-Romania defense agreement provides the following:

This Agreement is concluded for an indefinite period and shall enter into force in
accordance with the internal laws of each Party x x x. (emphasis supplied)

Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:

This Agreement has been concluded for an indefinite period of time. It may be
terminated by written notification by either Party and in that event it terminates 2
years after the receipt of the notification. (emphasis supplied)

Section VIII of US.-Denmark Mutual Support Agreement similarly provides:

8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and Annexes
A and B, shall become effective on the date of the last signature affixed below
and shall remain in force until terminated by the Parties, provided that it may be
terminated by either Party upon 180 days written notice of its intention to do so to
the other Party. (emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force Posture Agreement provides
a longer initial term:

3. This Agreement shall have an initial term of 25 years and thereafter shall
continue in force, but may be terminated by either Party at any time upon one year's
written notice to the other Party through diplomatic channels. (emphasis supplied)

The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a term
less than half of that is provided in the latter agreement. This means that EDCA
merely follows the practice of other states in not specifying a non-extendible
maximum term. This practice, however, does not automatically grant a badge of
permanency to its terms. Article XII(4) of EDCA provides very clearly, in fact, that its
effectivity is for an initial term of 10 years, which is far shorter than the terms of
effectivity between the U.S. and other states. It is simply illogical to conclude that the
initial, extendible term of 10 years somehow gives EDCA provisions a permanent
character.

The reasoning behind this interpretation is rooted in the constitutional role of the
President who, as Commander-in-Chief of our armed forces, is the principal strategist
of the nation and, as such, duty-bound to defend our national sovereignty and
territorial integrity;291 who, as chief architect of our foreign relations, is the head
policymaker tasked to assess, ensure, and protect our national security and
interests;292 who holds the most comprehensive and most confidential information
about foreign countries293 that may affect how we conduct our external affairs; and
who has unrestricted access to highly classified military intelligence data294 that may
threaten the life of the nation. Thus, if after a geopolitical prognosis of situations
affecting the country, a belief is engendered that a much longer period of military
training is needed, the President must be given ample discretion to adopt necessary
measures including the flexibility to set an extended timetable.

Due to the sensitivity and often strict confidentiality of these concerns, we

acknowledge that the President may not always be able to candidly and openly discuss
the complete situation being faced by the nation. The Chief Executive's hands must
not be unduly tied, especially if the situation calls for crafting programs and setting
timelines for approved activities. These activities may be necessary for maintaining
and developing our capacity to resist an armed attack, ensuring our national
sovereignty and territorial integrity, and securing our national interests. If the Senate
decides that the President is in the best position to define in operational terms the
meaning of temporary in relation to the visits, considered individually or in their totality,
the Court must respect that policy decision. If the Senate feels that there is no need to
set a time limit to these visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in regard to the extent of
the "temporary" nature of the visits of U.S. personnel does not suggest that the
duration to which the President may agree is unlimited. Instead, the boundaries of the
meaning of the term temporary in Article I of the treaty must be measured depending
on the purpose of each visit or activity.295 That purpose must be analyzed on a case-
by-case basis depending on the factual circumstances surrounding the conclusion of
the implementing agreement. While the validity of the President's actions will be
judged under less stringent standards, the power of this Court to determine whether
there was grave abuse of discretion remains unimpaired.

d. Authorized activities performed by US. contractors within Philippine territory - who were
legitimately permitted to enter the country independent of EDCA - are subject to relevant Philippine
statutes and regulations and must be consistent with the MDT and the VFA

Petitioners also raise296 concerns about the U.S. government's purported practice of
hiring private security contractors in other countries. They claim that these
contractors - one of which has already been operating in Mindanao since 2004 - have
been implicated in incidents or scandals in other parts of the globe involving
rendition, torture and other human rights violations. They also assert that these
contractors employ paramilitary forces in other countries where they are operating.

Under Articles III and IV of EDCA, U.S. contractors are authorized to perform only
the following activities:

1. Training; transit; support and related activities; refueling of aircraft;

bunkering of vessels; temporary maintenance of vehicles, vessels, and aircraft;
temporary accommodation of personnel; communications; prepositioning of
equipment, supplies, and materiel; deployment of forces and materiel; and such
other activities as the Parties may agree297

2. Prepositioning and storage of defense equipment, supplies, and materiel,

including delivery, management, inspection, use, maintenance, and removal of
such equipment, supplies and materiel298

3. Carrying out of matters in accordance with, and to the extent permissible

under, U.S. laws, regulations, and policies299

EDCA requires that all activities within Philippine territory be in accordance with
Philippine law. This means that certain privileges denied to aliens are likewise denied
to foreign military contractors. Relevantly, providing security300and carrying, owning,
and possessing firearms301 are illegal for foreign civilians.
The laws in place already address issues regarding the regulation of contractors. In the
2015 Foreign Investment Negative list,302 the Executive Department has already
identified corporations that have equity restrictions in Philippine jurisdiction. Of note
is No. 5 on the list - private security agencies that cannot have any foreign equity by
virtue of Section 4 of Republic Act No. 5487;303 and No. 15, which regulates contracts
for the construction of defense-related structures based on Commonwealth Act No.
541.

Hence, any other entity brought into the Philippines by virtue of EDCA must
subscribe to corporate and civil requirements imposed by the law, depending on the
entity's corporate structure and the nature of its business.

That Philippine laws extraneous to EDCA shall govern the regulation of the activities
of U.S. contractors has been clear even to some of the present members of the
Senate.

For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused of
spilling fuel in the waters off Manila Bay.304 The Senate Committee on Foreign
Relations and the Senate Committee on Environment and Natural Resources
chairperson claimed environmental and procedural violations by the
contractor.305 The U.S. Navy investigated the contractor and promised stricter
guidelines to be imposed upon its contractors.306 The statement attributed to
Commander Ron Steiner of the public affairs office of the U.S. Navy's 7th Fleet - that
U.S. Navy contractors are bound by Philippine laws - is of particular relevance. The
statement acknowledges not just the presence of the contractors, but also the U.S.
position that these contractors are bound by the local laws of their host state. This
stance was echoed by other U.S. Navy representatives.307

This incident simply shows that the Senate was well aware of the presence of U.S.
contractors for the purpose of fulfilling the terms of the VFA. That they are bound by
Philippine law is clear to all, even to the U.S.

As applied to EDCA, even when U.S. contractors are granted access to the Agreed
Locations, all their activities must be consistent with Philippine laws and regulations
and pursuant to the MDT and the VFA.

While we recognize the concerns of petitioners, they do not give the Court enough
justification to strike down EDCA. In Lim v. Executive Secretary, we have already
explained that we cannot take judicial notice of claims aired in news reports, "not
because of any issue as to their truth, accuracy, or impartiality, but for the simple
reason that facts must be established in accordance with the rules of
evidence."308 What is more, we cannot move one step ahead and speculate that the
alleged illegal activities of these contractors in other countries would take place in the
Philippines with certainty. As can be seen from the above discussion, making sure that
U.S. contractors comply with Philippine laws is a function of law enforcement.
EDCA does not stand in the way of law enforcement.

Nevertheless, we emphasize that U.S. contractors are explicitly excluded from the
coverage of the VFA. As visiting aliens, their entry, presence, and activities are subject
to all laws and treaties applicable within the Philippine territory. They may be refused
entry or expelled from the country if they engage in illegal or undesirable activities.
There is nothing that prevents them from being detained in the country or being
subject to the jurisdiction of our courts. Our penal laws,309 labor laws,310 and
immigrations laws311 apply to them and therefore limit their activities here. Until and
unless there is another law or treaty that specifically deals with their entry and
activities, their presence in the country is subject to unqualified Philippine jurisdiction.

EDCA does not allow the presence of U.S.-owned or -controlled military

facilities and bases in the Philippines

Petitioners Saguisag et al. claim that EDCA permits the establishment of U.S. military
bases through the "euphemistically" termed "Agreed Locations. "312 Alluding to the
definition of this term in Article II(4) of EDCA, they point out that these locations
are actually military bases, as the definition refers to facilities and areas to which U.S.
military forces have access for a variety of purposes. Petitioners claim that there are
several badges of exclusivity in the use of the Agreed Locations by U.S.
forces. First, Article V(2) of EDCA alludes to a "return" of these areas once they are
no longer needed by U.S. forces, indicating that there would be some transfer of
use. Second, Article IV(4) ofEDCA talks about American forces' unimpeded access to
the Agreed Locations for all matters relating to the prepositioning and storage of U.S.
military equipment, supplies, and materiel. Third, Article VII of EDCA authorizes
U.S. forces to use public utilities and to operate their own telecommunications system.

a. Preliminary point on badges of exclusivity

As a preliminary observation, petitioners have cherry-picked provisions of EDCA by

presenting so-called "badges of exclusivity," despite the presence of contrary
provisions within the text of the agreement itself.

First, they clarify the word "return" in Article V(2) of EDCA. However, the use of the
word "return" is within the context of a lengthy provision. The provision as a whole
reads as follows:
The United States shall return to the Philippines any Agreed Locations, or any portion
thereof, including non-relocatable structures and assemblies constructed, modified, or
improved by the United States, once no longer required by United States forces for
activities under this Agreement. The Parties or the Designated Authorities shall
consult regarding the terms of return of any Agreed Locations, including possible
compensation for improvements or construction.

The context of use is "required by United States forces for activities under this
Agreement." Therefore, the return of an Agreed Location would be within the
parameters of an activity that the Mutual Defense Board (MDB) and the Security
Engagement Board (SEB) would authorize. Thus, possession by the U.S. prior to its
return of the Agreed Location would be based on the authority given to it by a joint
body co-chaired by the "AFP Chief of Staff and Commander, U.S. PACOM with
representatives from the Philippines' Department of National Defense and
Department of Foreign Affairs sitting as members."313 The terms shall be negotiated
by both the Philippines and the U.S., or through their Designated Authorities. This
provision, seen as a whole, contradicts petitioners' interpretation of the return as a
"badge of exclusivity." In fact, it shows the cooperation and partnership aspect of
EDCA in full bloom.

Second, the term "unimpeded access" must likewise be viewed from a contextual
perspective. Article IV(4) states that U.S. forces and U.S. contractors shall have
"unimpeded access to Agreed Locations for all matters relating to the prepositioning
and storage of defense equipment, supplies, and materiel, including delivery,
management, inspection, use, maintenance, and removal of such equipment, supplies
and materiel."

At the beginning of Article IV, EDCA states that the Philippines gives the U.S. the
authority to bring in these equipment, supplies, and materiel through the MDB and
SEB security mechanism. These items are owned by the U.S.,314 are exclusively for the
use of the U.S.315 and, after going through the joint consent mechanisms of the MDB
and the SEB, are within the control of the U.S.316 More importantly, before these
items are considered prepositioned, they must have gone through the process of prior
authorization by the MDB and the SEB and given proper notification to the AFP.317

Therefore, this "unimpeded access" to the Agreed Locations is a necessary adjunct to

the ownership, use, and control of the U.S. over its own equipment, supplies, and
materiel and must have first been allowed by the joint mechanisms in play between
the two states since the time of the MDT and the VFA. It is not the use of the Agreed
Locations that is exclusive per se; it is mere access to items in order to exercise the
rights of ownership granted by virtue of the Philippine Civil Code.318
As for the view that EDCA authorizes U.S. forces to use public utilities and to
operate their own telecommunications system, it will be met and answered in part D,
infra.

Petitioners also point out319 that EDCA is strongly reminiscent of and in fact bears a
one-to-one correspondence with the provisions of the 1947 MBA. They assert that
both agreements (a) allow similar activities within the area; (b) provide for the same
"species of ownership" over facilities; and (c) grant operational control over the entire
area. Finally, they argue320 that EDCA is in fact an implementation of the new defense
policy of the U.S. According to them, this policy was not what was originally intended
either by the MDT or by the VFA.

On these points, the Court is not persuaded.

The similar activities cited by petitioners321 simply show that under the MBA, the U.S.
had the right to construct, operate, maintain, utilize, occupy, garrison, and control the
bases. The so-called parallel provisions of EDCA allow only operational control over
the Agreed Locations specifically for construction activities. They do not allow the
overarching power to operate, maintain, utilize, occupy, garrison, and control a base
with full discretion. EDCA in fact limits the rights of the U.S. in respect of every
activity, including construction, by giving the MDB and the SEB the power to
determine the details of all activities such as, but not limited to, operation,
maintenance, utility, occupancy, garrisoning, and control.322

The "species of ownership" on the other hand, is distinguished by the nature of the
property. For immovable property constructed or developed by the U.S., EDCA
expresses that ownership will automatically be vested to the Philippines.323 On the
other hand, for movable properties brought into the Philippines by the U.S., EDCA
provides that ownership is retained by the latter. In contrast, the MBA dictates that
the U.S. retains ownership over immovable and movable properties.

To our mind, both EDCA and the MBA simply incorporate what is already the law of
the land in the Philippines. The Civil Code's provisions on ownership, as applied,
grant the owner of a movable property full rights over that property, even if located in
another person's property.324

The parallelism, however, ends when the situation involves facilities that can be
considered immovable. Under the MBA, the U.S. retains ownership if it paid for the
facility.325 Under EDCA, an immovable is owned by the Philippines, even if built
completely on the back of U.S. funding.326 This is consistent with the constitutional
prohibition on foreign land ownership.327
Despite the apparent similarity, the ownership of property is but a part of a larger
whole that must be considered before the constitutional restriction is violated. Thus,
petitioners' points on operational control will be given more attention in the
discussion below. The arguments on policy are, however, outside the scope of judicial
review and will not be discussed

Moreover, a direct comparison of the MBA and EDCA will result in several
important distinctions that would allay suspicion that EDCA is but a disguised version
of the MBA.

b. There are substantial matters that the US. cannot do under EDCA, but which it was authorized
to do under the 1947 MBA

The Philippine experience with U.S. military bases under the 1947 MBA is simply not
possible under EDCA for a number of important reasons.

First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over
Philippine territory occupied by American bases. In contrast, the U.S. under EDCA
does not enjoy any such right over any part of the Philippines in which its forces or
equipment may be found. Below is a comparative table between the old treaty and
EDCA:

1947 MBA/ 1946 Treaty of General EDCA

Relations
1947 MBA, Art. I(1): EDCA, preamble:

The Government of the Republic of Affirming that the Parties share an

the Philippines (hereinafter referred to
as the Philippines) grants to the
Government of the United States of
America (hereinafter referred to as the
United States) the right to retain the
use of the bases in the
Philippines listed in Annex A attached
hereto.
1947 MBA, Art. XVII(2):
All buildings and structures which
are erected by the United States in
understanding for the United
States not to establish a permanent
military presence or base in the
territory of the Philippines;
xxxx
Recognizing that all United States
access to and use of facilities and areas
will be at the invitation of the
Philippines and with full respect for
the Philippine Constitution and
the bases shall be the property of the Philippine laws;
United States and may be removed
by it before the expiration of this xxxx
Agreement or the earlier
relinquishment of the base on which EDCA, Art. II(4):
the structures are situated. There shall
be no obligation on the part of the "Agreed Locations" means facilities
Philippines or of the United States to and areas that are provided by the
rebuild or repair any destruction or Government of the
damage inflicted from any cause Philippines through the AFP and that
whatsoever on any of the said buildings United States forces, United States
or structures owned or used by the contractors, and others as mutually
United States in the bases. x x x x. agreed, shall have the right to access
and use pursuant to this Agreement.
1946 Treaty of Gen. Relations, Art. I: Such Agreed Locations may be listed in
an annex to be appended to this
The United States of America agrees Agreement, and may be further
to withdraw and surrender, and does described in implementing
hereby withdraw and surrender, all arrangements.
rights of possession, supervision,
jurisdiction, control or EDCA, Art. V:
sovereignty existing and exercised by
the United States of America in and 1. The Philippines shall retain
over the territory and the people of ownership of and title to Agreed
the Philippine Islands, except the Locations.
use of such bases, necessary
xxxx
appurtenances to such bases, and
the rights incident thereto, as the
4. All buildings, non-relocatable
United States of America, by agreement structures, and assemblies affixed to
with the Republic of the Philippines the land in the Agreed
may deem necessary to retain for the Locations, including ones altered or
mutual protection of the Republic of
improved by United States
the Philippines and of the United States forces, remain the property of the
of America. x x x. Philippines. Permanent buildings
constructed by United States forces
become the property of the Philippines,
once constructed, but shall be used by
United States forces until no longer
required by United States forces.
Second, in the bases agreement, the U.S. and the Philippines were visibly not on
equal footing when it came to deciding whether to expand or to increase the number
of bases, as the Philippines may be compelled to negotiate with the U.S. the moment
the latter requested an expansion of the existing bases or to acquire additional bases.
In EDCA, U.S. access is purely at the invitation of the Philippines.

1947 MBA/ 1946 Treaty of General EDCA

Relations
1947 MBA, Art.I(3): EDCA, preamble:

The Philippines agree to enter into
negotiations with the United
States at the latter's request, to
permit the United States to expand
such bases, to exchange such bases
for other bases, to acquire additional
bases, or relinquish rights to bases, as
any of such exigencies may be required
by military necessity.
1946 Treaty of Gen. Relations, Art. I:
The United States of America agrees
to withdraw and surrender, and does
hereby withdraw and surrender, all
rights of possession, supervision,
jurisdiction, control or
sovereignty existing and exercised by
the United States of America in and
over the territory and the people of
the Philippine Islands, except the
use of such bases, necessary
appurtenances to such bases, and the
rights incident thereto, as the United
States of America, by agreement
with the Republic of the
Philippines may deem necessary to
Recognizing that all United States
access to and use of facilities and areas
will be at the invitation of the
Philippines and with full respect for
the Philippine Constitution and
Philippine laws;
xxxx
EDCA. Art. II(4):
"Agreed Locations" means facilities
and areas that are provided by the
Government of the
Philippines through the AFP and that
United States forces, United States
contractors, and others as mutually
agreed, shall have the right to access
and use pursuant to this Agreement.
Such Agreed Locations may be listed in
an annex to be appended to this
Agreement, and may be further
described in implementing
arrangements.
 retain for the mutual protection of the
Republic of the Philippines and of the
United States of America. x x x.

Third, in EDCA, the Philippines is- guaranteed access over the entire area of the
Agreed Locations. On the other hand, given that the U.S. had complete control over
its military bases under the 1947 MBA, the treaty did not provide for any express
recognition of the right of access of Philippine authorities. Without that provision and
in light of the retention of U.S. sovereignty over the old military bases, the U.S. could
effectively prevent Philippine authorities from entering those bases.

1947 MBA EDCA

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

The Philippine Designated

Authority and its authorized
representative shall have access to
the entire area of the Agreed
Locations. Such access shall be
provided promptly consistent with
operational safety and security
requirements in accordance with agreed
procedures developed by the Parties.

Fourth, in the bases agreement, the U.S. retained the right, power, and authority over
the establishment, use, operation, defense, and control of military bases, including the
limits of territorial waters and air space adjacent to or in the vicinity of those bases.
The only standard used in determining the extent of its control was military necessity.
On the other hand, there is no such grant of power or authority under EDCA. It
merely allows the U.S. to exercise operational control over the construction of
Philippine-owned structures and facilities:

1947 MBA EDCA

1947 MBA, Art.I(2): EDCA, Art. III(4):

The Philippines agrees to permit the The Philippines hereby grants to the
United States, upon notice to the United States, through bilateral
Philippines, to use such of those security mechanisms, such as the
 bases listed in Annex B as the United MDB and SEB, operational
States determines to be required by control of Agreed
military necessity. Locations for construction
activities and authority to undertake
1947 MBA, Art. III(1): such activities on, and make
alterations and improvements to,
It is mutually agreed that the United Agreed Locations. United States
States shall have the rights, power forces shall consult on issues
and authority within the bases which regarding such construction,
are necessary for the establishment, alterations, and improvements based
use, operation and defense thereof on the Parties' shared intent that the
or appropriate for the control technical requirements and
thereof and all the rights, power and construction standards of any such
authority within the limits of projects undertaken by or on behalf of
territorial waters and air space United States forces should be
adjacent to, or in the vicinity of, the consistent with the requirements and
bases which are necessary to provide standards of both Parties.
access to them, or appropriate for
their control.

Fifth, the U.S. under the bases agreement was given the authority to use Philippine
territory for additional staging areas, bombing and gunnery ranges. No such right is
given under EDCA, as seen below:

1947 MBA EDCA

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

The United States shall, subject to With consideration of the views of

previous agreement with the
Philippines, have the right to use land
and coastal sea areas of appropriate
size and location for periodic
maneuvers, for additional staging
areas, bombing and gunnery
ranges, and for such intermediate
airfields as may be required for safe
and efficient air operations. Operations
in such areas shall be carried on with
due regard and safeguards for the
the Parties,
the Philippines hereby authorizes and
agrees that United States forces, United
States contractors, and vehicles, vessels,
and aircraft operated by or for United
States forces may conduct the
following activities with respect to
Agreed Locations: training; transit;
support and related activities; refueling
of aircraft; bunkering of vessels;
temporary maintenance of vehicles,
 public safety.
1947 MBA, Art.I(2):
The Philippines agrees to permit the
United States, upon notice to the
Philippines, to use such of those
bases listed in Annex B as the United
States determines to be required by
military necessity.
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.

Sixth, under the MBA, the U.S. was given the right, power, and authority to control
and prohibit the movement and operation of all types of vehicles within the vicinity of
the bases. The U.S. does not have any right, power, or authority to do so under
EDCA.

1947 MBA EDCA

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

Such rights, power and authority shall

include, inter alia, the right, power and
authority: x x x x to control (including
the right to prohibit) in so far as may
be required for the efficient operation
and safety of the bases, and within the
limits of military
necessity, anchorages, moorings,
landings, takeoffs, movements and
operation of ships and water-borne
craft, aircraft and other vehicles on
water, in the air or on land
comprising

Seventh, under EDCA, the U.S. is merely given temporary access to land and
facilities (including roads, ports, and airfields). On the other hand, the old treaty gave
the U.S. the right to improve and deepen the harbors, channels, entrances, and
anchorages; and to construct or maintain necessary roads and bridges that would
afford it access to its military bases.
 1947 MBA EDCA
1947 MBA, Art. III(2)(b): EDCA, Art. III(2):

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to improve and
deepen the harbors, channels,
entrances and anchorages, and to
construct or maintain necessary
roads and bridges affording access to
the bases.
When requested, the Designated
Authority of the Philippines shall assist
in facilitating transit or temporary
access by United States forces to
public land and facilities (including
roads, ports, and airfields), including
those owned or controlled by local
governments, and to other land and
facilities (including roads, ports, and
airfields).

Eighth, in the 1947 MBA, the U.S. was granted the automatic right to use any and all
public utilities, services and facilities, airfields, ports, harbors, roads, highways,
railroads, bridges, viaducts, canals, lakes, rivers, and streams in the Philippines in the
same manner that Philippine military forces enjoyed that right. No such arrangement
appears in EDCA. In fact, it merely extends to U.S. forces temporary access to public
land and facilities when requested:

1947 MBA EDCA

1947 MBA, Art. VII: EDCA, Art. III(2):

It is mutually agreed that the United When requested, the Designated

States may employ and use for
United States military forces any and
all public utilities, other services
and facilities, airfields, ports, harbors,
roads, highways, railroads, bridges,
viaducts, canals, lakes, rivers and
streams in the Philippines under
conditions no less favorable than
those that may be applicable from
time to time to the military forces of
the Philippines.
Authority of the Philippines shall assist
in facilitating transit or temporary
access by United States forces to
public land and facilities (including
roads, ports, and airfields), including
those owned or controlled by local
governments, and to other land and
facilities (including roads, ports, and
airfields).

Ninth, under EDCA, the U.S. no longer has the right, power, and authority to
construct, install, maintain, and employ any type of facility, weapon, substance, device,
vessel or vehicle, or system unlike in the old treaty. EDCA merely grants the U.S.,
through bilateral security mechanisms, the authority to undertake construction,
alteration, or improvements on the Philippine-owned Agreed Locations.

1947 MBA EDCA

1947 MBA, Art. III(2)(e): EDCA, Art. III(4):

Such rights, power and authority shall
include, inter alia, the right, power and
authority: x x x x to construct,
install, maintain, and employ on any
base any type of facilities, weapons,
substance, device, vessel or
vehicle on or under the ground, in the
air or on or under the water that may
be requisite or appropriate, including
meteorological systems, aerial and
water navigation lights, radio and radar
apparatus and electronic devices, of any
desired power, type of emission and
frequency.
The Philippines hereby grants to
the United States, through bilateral
security mechanisms, such as the
MDB and SEB, operational control of
Agreed Locations for construction
activities and authority to undertake
such activities on, and make
alterations and improvements to,
Agreed Locations. United States
forces shall consult on issues regarding
such construction, alterations, and
improvements based on the Parties'
shared intent that the technical
requirements and construction
standards of any such projects
undertaken by or on behalf of United
States forces should be consistent with
the requirements and standards of both
Parties.

Tenth, EDCA does not allow the U.S. to acquire, by condemnation or expropriation
proceedings, real property belonging to any private person. The old military bases
agreement gave this right to the U.S. as seen below:

1947 MBA EDCA

1947 MBA, Art. XXII(l): No equivalent provision.

Whenever it is necessary to acquire by

condemnation or expropriation
proceedings real property belonging
to any private persons, associations
 or corporations located in bases named
in Annex A and Annex B in order to
carry out the purposes of this
Agreement, the Philippines will
institute and prosecute such
condemnation or expropriation
proceedings in accordance with the
laws of the Philippines. The United
States agrees to reimburse the
Philippines for all the reasonable
expenses, damages and costs therebv
incurred, including the value of the
property as determined by the Court.
In addition, subject to the mutual
agreement of the two Governments,
the United States will reimburse the
Philippines for the reasonable costs of
transportation and removal of any
occupants displaced or ejected by
reason of the condemnation or
expropriation.

Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country non-
Philippine nationals who are under its employ, together with their families, in
connection with the construction, maintenance, or operation of the bases. EDCA
strictly adheres to the limits under the VFA.

1947 MBA EDCA

1947 MBA, Art. XI(l): EDCA, Art. II:

It is mutually agreed that the United 1. "United States personnel" means

States shall have the right to bring
into the Philippines members of the
United States military forces and
the United States nationals
employed by or under a contract
with the United States together with
their families, and technical
personnel of other nationalities (not
United States military and civilian
personnel temporarily in the territory
of the Philippines in connection with
activities approved by the
Philippines, as those terms are
defined in the VFA.
 being persons excluded by the laws of
the Philippines) in connection with the
construction, maintenance, or
operation of the bases. The United
States shall make suitable arrangements
so that such persons may be readily
identified and their status established
when necessary by the Philippine
authorities. Such persons, other than
members of the United States armed
forces in uniform, shall present their
travel documents to the appropriate
Philippine authorities for visas, it being
understood that no objection will be
made to their travel to the
Philippines as non-immigrants.
x xx x
3. "United States contractors" means
companies and firms, and their
employees, under contract or
subcontract to or on behalf of the
United States Department of Defense.
United States contractors are not
included as part of
the definition of United States
personnel in this
Agreement, including within the
context of the VFA.

Twelfth, EDCA does not allow the U.S. to exercise jurisdiction over any offense
committed by any person within the Agreed Locations, unlike in the former military
bases:

1947 MBA EDCA

1947 MBA, Art. XIII(l)(a): No equivalent provision.

The Philippines consents that

the United

States shall have the right to exercise

jurisdiction over the following
offenses: (a) Any offense committed
by any person within any base except
where the offender and offended
parties are both Philippine citizens (not
members of the armed forces of the
United States on active duty) or the
offense is against the security of the
Philippines.
Thirteenth, EDCA does not allow the U.S. to operate military post exchange (PX)
facilities, which is free of customs duties and taxes, unlike what the expired MBA
expressly allowed. Parenthetically, the PX store has become the cultural icon of U.S.
military presence in the country.

1947 MBA EDCA

1947 MBA, Art. XVIII(l): No equivalent provision.

It is mutually agreed that the United

States

shall have the right to establish on

bases, free of all licenses; fees; sales,
excise or other taxes, or
imposts; Government
agencies, including concessions, such
as sales commissaries and post
exchanges; messes and social
clubs, for the exclusive use of the
United States military forces and
authorized civilian personnel and
their families. The merchandise or
services sold or dispensed by such
agencies shall be free of all taxes,
duties and inspection by the
Philippine authorities. Administrative
measures shall be taken by the
appropriate authorities of the United
States to prevent the resale of goods
which are sold under the provisions of
this Article to persons not entitled to
buy goods at such agencies and,
generally, to prevent abuse of the
privileges granted under this Article.
There shall be cooperation between
such authorities and the Philippines to
this end.

In sum, EDCA is a far cry from a basing agreement as was understood by the people
at the time that the 1987 Constitution was adopted.
Nevertheless, a comprehensive review of what the Constitution means by "foreign
military bases" and "facilities" is required before EDCA can be deemed to have
passed judicial scrutiny.

c. The meaning of military facilities and bases

An appreciation of what a military base is, as understood by the Filipino people in

1987, would be vital in determining whether EDCA breached the constitutional
restriction.

Prior to the drafting of the 1987 Constitution, the last definition of "military base"
was provided under Presidential Decree No. (PD) 1227.328 Unlawful entry into a
military base is punishable under the decree as supported by Article 281 of the
Revised Penal Code, which itself prohibits the act of trespass.

Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used in this
decree means any military, air, naval, or coast guard reservation, base, fort, camp,
arsenal, yard, station, or installation in the Philippines."

Commissioner Tadeo, in presenting his objections to U.S. presence in the Philippines

before the 1986 Constitutional Commission, listed the areas that he considered as
military bases:

1,000 hectares Camp O'Donnel

20,000 hectares Crow Valley Weapon's Range

55,000 hectares Clark Air Base

150 hectares Wallace Air Station

400 hectares John Hay Air Station

15,000 hectares Subic Naval Base

1,000 hectares San Miguel Naval Communication

750 hectares Radio Transmitter in Capas, Tarlac

900 hectares Radio Bigot Annex at Bamban, Tarlac329

The Bases Conversion and Development Act of 1992 described its coverage in its
Declaration of Policies:

Sec. 2. Declaration of Policies. - It is hereby declared the policy of the Government to

accelerate the sound and balanced conversion into alternative productive uses of the
Clark and Subic military reservations and their extensions (John Hay Station, Wallace
Air Station, O'Donnell Transmitter Station, San Miguel Naval Communications
Station and Capas Relay Station), to raise funds by the sale of portions of Metro
Manila military camps, and to apply said funds as provided herein for the
development and conversion to productive civilian use of the lands covered under the
194 7 Military Bases Agreement between the Philippines and the United States of
America, as amended.330

The result of the debates and subsequent voting is Section 25, Article XVIII of the
Constitution, which specifically restricts, among others, foreign military facilities or
bases. At the time of its crafting of the Constitution, the 1986 Constitutional
Commission had a clear idea of what exactly it was restricting. While the term
"facilities and bases" was left undefined, its point of reference was clearly those areas
covered by the 1947 MBA as amended.

Notably, nearly 30 years have passed since then, and the ever-evolving world of
military technology and geopolitics has surpassed the understanding of the Philippine
people in 1986. The last direct military action of the U.S. in the region was the use of
Subic base as the staging ground for Desert Shield and Desert Storm during the Gulf
War.331In 1991, the Philippine Senate rejected the successor treaty of the 1947 MBA
that would have allowed the continuation of U.S. bases in the Philippines.

Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve
likewise, taking into consideration the subsisting agreements between both parties, the
rejection of the 1991 proposal, and a concrete understanding of what was
constitutionally restricted. This trend birthed the VFA which, as discussed, has already
been upheld by this Court.

The latest agreement is EDCA, which proposes a novel concept termed "Agreed
Locations."

By definition, Agreed Locations are

facilities and areas that are provided by the Government of the Philippines through
the AFP and that United States forces, United States contractors, and others as
mutually agreed, shall have the right to access and use pursuant to this Agreement.
Such Agreed Locations may be listed in an annex to be appended to this Agreement,
and may be further described in implementing arrangements.332

Preliminarily, respondent already claims that the proviso that the Philippines shall
retain ownership of and title to the Agreed Locations means that EDCA is
"consistent with Article II of the VFA which recognizes Philippine sovereignty and
jurisdiction over locations within Philippine territory.333

By this interpretation, respondent acknowledges that the contention of petitioners

springs from an understanding that the Agreed Locations merely circumvent the
constitutional restrictions. Framed differently, the bone of contention is whether the
Agreed Locations are, from a legal perspective, foreign military facilities or bases. This
legal framework triggers Section 25, Article XVIII, and makes Senate concurrence
a sine qua non.

Article III of EDCA provides for Agreed Locations, in which the U.S. is authorized
by the Philippines to "conduct the following activities: "training; transit; support and
related activities; refueling of aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels and aircraft; temporary accommodation of personnel;
communications; prepositioning of equipment, supplies and materiel; deploying forces
and materiel; and such other activities as the Parties may agree."

This creation of EDCA must then be tested against a proper interpretation of the
Section 25 restriction.

d. Reasons for the constitutional requirements and legal standards for constitutionally compatible
military bases and facilities

Section 25 does not define what is meant by a "foreign military facility or base." While
it specifically alludes to U.S. military facilities and bases that existed during the
framing of the Constitution, the provision was clearly meant to apply to those bases
existing at the time and to any future facility or base. The basis for the restriction must
first be deduced from the spirit of the law, in order to set a standard for the
application of its text, given the particular historical events preceding the agreement.

Once more, we must look to the 1986 Constitutional Commissioners to glean, from
their collective wisdom, the intent of Section 25. Their speeches are rich with history
and wisdom and present a clear picture of what they considered in the crafting the
provision.

SPEECH OF COMMISSIONER REGALADO334

 xxxx

We have been regaled here by those who favor the adoption of the anti-bases
provisions with what purports to be an objective presentation of the historical
background of the military bases in the Philippines. Care appears, however, to have
been taken to underscore the inequity in their inception as well as their
implementation, as to seriously reflect on the supposed objectivity of the report.
Pronouncements of military and civilian officials shortly after World War II are
quoted in support of the proposition on neutrality; regrettably, the implication is that
the same remains valid today, as if the world and international activity stood still for
the last 40 years.

We have been given inspired lectures on the effect of the presence of the
military bases on our sovereignty - whether in its legal or political sense is not
clear - and the theory that any country with foreign bases in its territory cannot
claim to be fully sovereign or completely independent. I was not aware that the
concepts of sovereignty and independence have now assumed the totality principle,
such that a willing assumption of some delimitations in the exercise of some aspects
thereof would put that State in a lower bracket of nationhood.

xxxx

We have been receiving a continuous influx of materials on the pros and cons on the
advisability of having military bases within our shores. Most of us who, only about
three months ago, were just mulling the prospects of these varying contentions are
now expected, like armchair generals, to decide not only on the geopolitical aspects
and contingent implications of the military bases but also on their political, social,
economic and cultural impact on our national life. We are asked to answer a plethora
of questions, such as: 1) whether the bases are magnets of nuclear attack or are
deterrents to such attack; 2) whether an alliance or mutual defense treaty is a
derogation of our national sovereignty; 3) whether criticism of us by Russia, Vietnam
and North Korea is outweighed by the support for us of the ASEAN countries, the
United States, South Korea, Taiwan, Australia and New Zealand; and 4) whether the
social, moral and legal problems spawned by the military bases and their operations
can be compensated by the economic benefits outlined in papers which have been
furnished recently to all of us.335

xxxx

Of course, one side of persuasion has submitted categorical, unequivocal and forceful
assertions of their positions. They are entitled to the luxury of the absolutes. We are
urged now to adopt the proposed declaration as a "golden," "unique" and
"last" opportunity for Filipinos to assert their sovereign rights. Unfortunately, I
have never been enchanted by superlatives, much less for the applause of the moment
or the ovation of the hour. Nor do I look forward to any glorious summer after a
winter of political discontent. Hence, if I may join Commissioner Laurel, I also invoke
a caveat not only against the tyranny of labels but also the tyranny of slogans.336

xxxx

SPEECH OF COMMISSIONER SUAREZ337

MR. SUAREZ: Thank you, Madam President.

I am quite satisfied that the crucial issues involved in the resolution of the problem of
the removal of foreign bases from the Philippines have been adequately treated by
previous speakers. Let me, therefore, just recapitulate the arguments adduced in favor
of a foreign bases-free Philippines:

1. That every nation should be free to shape its own destiny without
outside interference;

2. That no lasting peace and no true sovereignty would ever be achieved so

long as there are foreign military forces in our country;

3. That the presence of foreign military bases deprives us of the very

substance of national sovereignty and this is a constant source of national
embarrassment and an insult to our national dignity and selfrespect as a nation;

4. That these foreign military bases unnecessarily expose our country to

devastating nuclear attacks;

5. That these foreign military bases create social problems and are designed to
perpetuate the strangle-hold of United States interests in our national economy
and development;

6. That the extraterritorial rights enjoyed by these foreign bases operate

to deprive our country of jurisdiction over civil and criminal
offenses committed within our own national territory and against Filipinos;

7. That the bases agreements are colonial impositions and dictations upon
our helpless country; and
 8. That on the legal viewpoint and in the ultimate analysis, all the bases
agreements are null and void ab initio, especially because they did not count the
sovereign consent and will of the Filipino people.338

xxxx

In the real sense, Madam President, if we in the Commission could accommodate the
provisions I have cited, what is our objection to include in our Constitution a matter
as priceless as the nationalist values we cherish? A matter of the gravest concern for
the safety and survival of this nation indeed deserves a place in our Constitution.

xxxx

x x x Why should we bargain away our dignity and our self-respect as a nation and
the future of generations to come with thirty pieces of silver?339

SPEECH OF COMMISSIONER BENNAGEN340

xxxx

The underlying principle of military bases and nuclear weapons wherever they are
found and whoever owns them is that those are for killing people or for
terrorizing humanity. This objective by itself at any point in history is morally
repugnant. This alone is reason enough for us to constitutionalize the ban on foreign
military bases and on nuclear weapons.341

SPEECH OF COMMISSIONER BACANI342

xxxx

x x x Hence, the remedy to prostitution does not seem to be primarily to remove

the bases because even if the bases are removed, the girls mired in poverty will look
for their clientele elsewhere. The remedy to the problem of prostitution lies primarily
elsewhere - in an alert and concerned citizenry, a healthy economy and a sound
education in values.343

SPEECH OF COMMISSIONER JAMIR344

xxxx

One of the reasons advanced against the maintenance of foreign military bases
here is that they impair portions of our sovereignty. While I agree that our
country's sovereignty should not be impaired, I also hold the view that there are times
when it is necessary to do so according to the imperatives of national interest. There
are precedents to this effect. Thus, during World War II, England leased its bases in
the West Indies and in Bermuda for 99 years to the United States for its use as naval
and air bases. It was done in consideration of 50 overaged destroyers which the
United States gave to England for its use in the Battle of the Atlantic.

A few years ago, England gave the Island of Diego Garcia to the United States for the
latter's use as a naval base in the Indian Ocean. About the same time, the United
States obtained bases in Spain, Egypt and Israel. In doing so, these countries, in effect,
contributed to the launching of a preventive defense posture against possible trouble
in the Middle East and in the Indian Ocean for their own protection.345

SPEECH OF COMMISSIONER TINGSON346

xxxx

In the case of the Philippines and the other Southeast Asian nations, the presence of
American troops in the country is a projection of America's security interest. Enrile
said that nonetheless, they also serve, although in an incidental and secondary way, the
security interest of the Republic of the Philippines and the region. Yes, of course, Mr.
Enrile also echoes the sentiments of most of us in this Commission, namely: It is
ideal for us as an independent and sovereign nation to ultimately abrogate the
RP-US military treaty and, at the right time, build our own air and naval
might.347

xxxx

Allow me to say in summation that I am for the retention of American military

bases in the Philippines provided that such an extension from one period to
another shall be concluded upon concurrence of the parties, and such
extension shall be based on justice, the historical amity of the people of the
Philippines and the United States and their common defense interest.348

SPEECH OF COMMISSIONER ALONTO349

xxxx

Madam President, sometime ago after this Commission started with this task of
framing a constitution, I read a statement of President Aquino to the effect that she is
for the removal of the U.S. military bases in this country but that the removal of the
U.S. military bases should not be done just to give way to other foreign bases. Today,
there are two world superpowers, both vying to control any and all countries which
have importance to their strategy for world domination. The Philippines is one such
country.

Madam President, I submit that I am one of those ready to completely remove

any vestiges of the days of enslavement, but not prepared to erase them if to do so
would merely leave a vacuum to be occupied by a far worse type.350

SPEECH OF COMMISSIONER GASCON351

xxxx

Let us consider the situation of peace in our world today. Consider our brethren in
the Middle East, in Indo-China, Central America, in South Africa - there has been
escalation of war in some of these areas because of foreign intervention which views
these conflicts through the narrow prism of the East-West conflict. The United
States bases have been used as springboards for intervention in some of these
conflicts. We should not allow ourselves to be party to the warlike mentality of
these foreign interventionists. We must always be on the side of peace this means
that we should not always rely on military solution.352

xxxx

x x x The United States bases, therefore, are springboards for intervention in our
own internal affairs and in the affairs of other nations in this region.

xxxx

Thus, I firmly believe that a self-respecting nation should safeguard its fundamental
freedoms which should logically be declared in black and white in our fundamental
law of the land - the Constitution. Let us express our desire for national
sovereignty so we may be able to achieve national self-determination. Let us
express our desire for neutrality so that we may be able to follow active nonaligned
independent foreign policies. Let us express our desire for peace and a nuclear-free
zone so we may be able to pursue a healthy and tranquil existence, to have peace that
is autonomous and not imposed. 353

xxxx

SPEECH OF COMMISSIONER TADEO354

Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa
magbubukid, ang kahulugan nito ay pagkaalipin. Para sa magbubukid, ang pananatili
ng U.S. military bases ay tinik sa dibdib ng sambayanang Pilipinong patuloy na
nakabaon. Para sa sambayanang magbubukid, ang ibig sabihin ng U.S. military
bases ay batong pabigat na patuloy na pinapasan ng sambayanang Pilipino. Para
sa sambayanang magbubukid, ang pananatili ng U.S. military bases ay isang nagdudumilat
na katotohanan ng patuloy na paggahasa ng imperyalistang Estados Unidos sa
ating Inang Bayan - economically, politically and culturally. Para sa sambayanang
magbubukid ang U.S. military bases ay kasingkahulugan ng nuclear weapon - ang
kahulugan ay magneto ng isang nuclear war. Para sa sambayanang magbubukid, ang
kahulugan ng U.S. military bases ay isang salot.355

SPEECH OF COMMISSIONER QUESADA356

xxxx

The drift in the voting on issues related to freeing ourselves from the instruments
of domination and subservience has clearly been defined these past weeks.

xxxx

So for the record, Mr. Presiding Officer, I would like to declare my support for the
committee's position to enshrine in the Constitution a fundamental principle
forbidding foreign military bases, troops or facilities in any part of the Philippine
territory as a clear and concrete manifestation of our inherent right to national
self-determination, independence and sovereignty.

Mr. Presiding Officer, I would like to relate now these attributes of genuine
nationhood to the social cost of allowing foreign countries to maintain military bases
in our country. Previous speakers have dwelt on this subject, either to highlight its
importance in relation to the other issues or to gloss over its significance and !llake
this a part of future negotiations.357

xxxx

Mr. Presiding Officer, I feel that banning foreign military bases is one of the solutions
and is the response of the Filipino people against this condition and other conditions
that have already been clearly and emphatically discussed in past deliberations. The
deletion, therefore, of Section 3 in the Constitution we are drafting will have the
following implications:
First, the failure of the Constitutional Commission to decisively respond to
the continuing violation of our territorial integrity via the military bases
agreement which permits the retention of U.S. facilities within the Philippine
soil over which our authorities have no exclusive jurisdiction contrary to the
accepted definition of the exercise of sovereignty.

Second, consent by this forum, this Constitutional Commission, to an exception in

the application of a provision in the Bill of Rights that we have just drafted
regarding equal application of the laws of the land to all inhabitants, permanent or
otherwise, within its territorial boundaries.

Third, the continued exercise by the United States of extraterritoriality despite

the condemnations of such practice by the world community of nations in the light of
overwhelming international approval of eradicating all vestiges of colonialism.358

xxxx

Sixth, the deification of a new concept called pragmatic sovereignty, in the hope
that such can be wielded to force the United States government to concede to better
terms and conditions concerning the military bases agreement, including the transfer
of complete control to the Philippine government of the U.S. facilities, while in
the meantime we have to suffer all existing indignities and disrespect towards our
rights as a sovereign nation.

xxxx

Eighth, the utter failure of this forum to view the issue of foreign military bases
as essentially a question of sovereignty which does not require in-depth studies or
analyses and which this forum has, as a constituent assembly drafting a constitution,
the expertise and capacity to decide on except that it lacks the political will that
brought it to existence and now engages in an elaborate scheme of buck-passing.

xxxx

Without any doubt we can establish a new social order in our country, if we reclaim,
restore, uphold and defend our national sovereignty. National sovereignty is what
the military bases issue is all about. It is only the sovereign people exercising their
national sovereignty who can design an independent course and take full control of
their national destiny.359

SPEECH OF COMMISSIONER P ADILLA360

 xxxx

Mr. Presiding Officer, in advocating the majority committee report, specifically

Sections 3 and 4 on neutrality, nuclear and bases-free country, some views stress
sovereignty of the Republic and even invoke survival of the Filipino nation and
people.361

REBUTTAL OF COMMISSIONER NOLLEDO362

xxxx

The anachronistic and ephemeral arguments against the provisions of the committee
report to dismantle the American bases after 1991 only show the urgent need to free
our country from the entangling alliance with any power bloc.363

xxxx

xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to know that
the so-called RP-US Bases Agreement will expire in 1991, that it infringes on our
sovereignty and jurisdiction as well as national dignity and honor, that it goes
against the UN policy of disarmament and that it constitutes unjust intervention in
our internal affairs.364 (Emphases Supplied)

The Constitutional Commission eventually agreed to allow foreign military bases,

troops, or facilities, subject to the provisions of Section 25. It is thus important to
read its discussions carefully. From these discussions, we can deduce three legal
standards that were articulated by the Constitutional Commission Members. These are
characteristics of any agreement that the country, and by extension this Court, must
ensure are observed. We can thereby determine whether a military base or facility in
the Philippines, which houses or is accessed by foreign military troops, is foreign or
remains a Philippine military base or facility. The legal standards we find applicable
are: independence from foreign control, sovereignty and applicable law, and national
security and territorial integrity.

i. First standard: independence from foreign control

Very clearly, much of the opposition to the U.S. bases at the time of the
Constitution's drafting was aimed at asserting Philippine independence from the U.S.,
as well as control over our country's territory and military.

Under the Civil Code, there are several aspects of control exercised over property.
Property is classified as private or public.365 It is public if "intended for public use,
such as roads, canals, rivers, torrents, ports and bridges constructed by the State,
banks, shores, roadsteads, and others of similar character[,]" or "[t]hose which belong
to the State, without being for public use, and are intended for some public service or
for the development of the national wealth. "366

Quite clearly, the Agreed Locations are contained within a property for public use, be
it within a government military camp or property that belongs to the
Philippines.1avvphi1

Once ownership is established, then the rights of ownership flow freely. Article 428 of
the Civil Code provides that "[t]he owner has the right to enjoy and dispose of a
thing, without other limitations than those established by law." Moreover, the owner
"has also a right of action against the holder and possessor of the thing in order to
recover it."

Philippine civil law therefore accords very strong rights to the owner of property,
even against those who hold the property. Possession, after all, merely raises a
disputable presumption of ownership, which can be contested through normal judicial
processes.367

In this case, EDCA explicitly provides that ownership of the Agreed Locations
remains with the Philippine govemment.368 What U.S. personnel have a right to,
pending mutual agreement, is access to and use of these locations.369

The right of the owner of the property to allow access and use is consistent with the
Civil Code, since the owner may dispose of the property in whatever way deemed fit,
subject to the limits of the law. So long as the right of ownership itself is not
transferred, then whatever rights are transmitted by agreement does not completely
divest the owner of the rights over the property, but may only limit them in
accordance with law.

Hence, even control over the property is something that an owner may transmit
freely. This act does not translate into the full transfer of ownership, but only of
certain rights. In Roman Catholic Apostolic Administrator of Davao, Inc. v. Land Registration
Commission, we stated that the constitutional proscription on property ownership is not
violated despite the foreign national's control over the property.370

EDCA, in respect of its provisions on Agreed Locations, is essentially a contract of

use and access. Under its pertinent provisions, it is the Designated Authority of the
Philippines that shall, when requested, assist in facilitating transit or access to public
land and facilities.371 The activities carried out within these locations are subject to
agreement as authorized by the Philippine govemment.372 Granting the U.S.
operational control over these locations is likewise subject to EDCA' s security
mechanisms, which are bilateral procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or a duly designated
representative is given access to the Agreed Locations.374

To our mind, these provisions do not raise the spectre of U.S. control, which was so
feared by the Constitutional Commission. In fact, they seem to have been the product
of deliberate negotiation from the point of view of the Philippine government, which
balanced constitutional restrictions on foreign military bases and facilities against the
security needs of the country. In the 1947 MBA, the U.S. forces had "the right, power
and authority x x x to construct (including dredging and filling), operate, maintain,
utilize, occupy, garrison and control the bases."375 No similarly explicit provision is
present in EDCA.

Nevertheless, the threshold for allowing the presence of foreign military facilities and
bases has been raised by the present Constitution. Section 25 is explicit that foreign
military bases, troops, or facilities shall not be allowed in the Philippines, except under
a treaty duly concurred in by the Senate. Merely stating that the Philippines would
retain ownership would do violence to the constitutional requirement if the Agreed
Locations were simply to become a less obvious manifestation of the U.S. bases that
were rejected in 1991.

When debates took place over the military provisions of the Constitution, the
committee rejected a specific provision proposed by Commissioner Sarmiento. The
discussion illuminates and provides context to the 1986 Constitutional Commission's
vision of control and independence from the U.S., to wit:

MR. SARMIENTO: Madam President, my proposed amendment reads as follows:

"THE STATE SHALL ESTABLISH AND MAINTAIN AN INDEPENDENT
AND SELF-RELIANT ARMED FORCES OF THE PHILIPPINES." Allow me to
briefly explain, Madam President. The Armed Forces of the Philippines is a vital
component of Philippine society depending upon its training, orientation and support.
It will either be the people's protector or a staunch supporter of a usurper or tyrant,
local and foreign interest. The Armed Forces of the Philippines' past and recent
experience shows it has never been independent and self-reliant. Facts, data and
statistics will show that it has been substantially dependent upon a foreign power. In
March 1968, Congressman Barbero, himself a member of the Armed Forces of the
Philippines, revealed top secret documents showing what he described as U.S.
dictation over the affairs of the Armed Forces of the Philippines. He showed that
under existing arrangements, the United States unilaterally determines not
only the types and quantity of arms and equipments that our armed forces
would have, but also the time when these items are to be made available to us.
It is clear, as he pointed out, that the composition, capability and schedule of
development of the Armed Forces of the Philippines is under the effective
control of the U.S. government.376 (Emphases supplied)

Commissioner Sarmiento proposed a motherhood statement in the 1987 Constitution

that would assert "independent" and "self-reliant" armed forces. This proposal was
rejected by the committee, however. As Commissioner De Castro asserted, the
involvement of the Philippine military with the U.S. did not, by itself, rob the
Philippines of its real independence. He made reference to the context of the
times: that the limited resources of the Philippines and the current insurgency at that
time necessitated a strong military relationship with the U.S. He said that the U.S.
would not in any way control the Philippine military despite this relationship and the
fact that the former would furnish military hardware or extend military assistance and
training to our military. Rather, he claimed that the proposal was in compliance with
the treaties between the two states.

MR. DE CASTRO: If the Commissioner will take note of my speech on U.S. military
bases on 12 September 1986, I spoke on the selfreliance policy of the armed forces.
However, due to very limited resources, the only thing we could do is manufacture
small arms ammunition. We cannot blame the armed forces. We have to blame the
whole Republic of the Philippines for failure to provide the necessary funds to make
the Philippine Armed Forces self-reliant. Indeed that is a beautiful dream. And I
would like it that way. But as of this time, fighting an insurgency case, a rebellion in
our country - insurgency - and with very limited funds and very limited number of
men, it will be quite impossible for the Philippines to appropriate the necessary funds
therefor. However, if we say that the U.S. government is furnishing us the
military hardware, it is not control of our armed forces or of our government. It
is in compliance with the Mutual Defense Treaty. It is under the military
assistance program that it becomes the responsibility of the United States to furnish
us the necessary hardware in connection with the military bases agreement. Please be
informed that there are three (3) treaties connected with the military bases agreement;
namely: the RP-US Military Bases Agreement, the Mutual Defense Treaty and the
Military Assistance Program.

My dear Commissioner, when we enter into a treaty and we are furnished the
military hardware pursuant to that treaty, it is not in control of our armed
forces nor control of our government. True indeed, we have military officers
trained in the U.S. armed forces school. This is part of our Military Assistance
Program, but it does not mean that the minds of our military officers are for the U.S.
government, no. I am one of those who took four courses in the United States
schools, but I assure you, my mind is for the Filipino people. Also, while we are
sending military officers to train or to study in U.S. military schools, we are also
sending our officers to study in other military schools such as in Australia, England
and in Paris. So, it does not mean that when we send military officers to United States
schools or to other military schools, we will be under the control of that country. We
also have foreign officers in our schools, we in the Command and General Staff
College in Fort Bonifacio and in our National Defense College, also in Fort
Bonifacio.377 (Emphases supplied)

This logic was accepted in Taada v. Angara, in which the Court ruled that
independence does not mean the absence of foreign participation:

Furthermore, the constitutional policy of a "self-reliant and independent national

economy" does not necessarily rule out the entry of foreign investments, goods
and services. It contemplates neither "economic seclusion" nor "mendicancy in the
international community." As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:

Economic self reliance is a primary objective of a developing country that is keenly

aware of overdependence on external assistance for even its most basic needs. It does
not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom from undue
foreign control of the national economy, especially in such strategic industries as in
the development of natural resources and public utilities.378 (Emphases supplied)

The heart of the constitutional restriction on foreign military facilities and bases is
therefore the assertion of independence from the U.S. and other foreign powers, as
independence is exhibited by the degree of foreign control exerted over these
areas.1wphi1 The essence of that independence is self-governance and self-
control.379 Independence itself is "[t]he state or condition of being free from
dependence, subjection, or control. "380

Petitioners assert that EDCA provides the U.S. extensive control and authority over
Philippine facilities and locations, such that the agreement effectively violates Section
25 of the 1987 Constitution.381

Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for
"operational control and defense." The term "operational control" has led petitioners
to regard U.S. control over the Agreed Locations as unqualified and, therefore,
total.382 Petitioners contend that the word "their" refers to the subject "Agreed
Locations."

This argument misreads the text, which is quoted below:

United States forces are authorized to exercise all rights and authorities within Agreed
Locations that are necessary for their operational control or defense, including taking
appropriate measure to protect United States forces and United States contractors.
The United States should coordinate such measures with appropriate authorities of
the Philippines.

A basic textual construction would show that the word "their," as understood above,
is a possessive pronoun for the subject "they," a third-person personal pronoun in
plural form. Thus, "their" cannot be used for a non-personal subject such as "Agreed
Locations." The simple grammatical conclusion is that "their" refers to the previous
third-person plural noun, which is "United States forces." This conclusion is in line
with the definition of operational control.

a. U.S. operational control as the exercise of authority over U.S. personnel, and not
over the Agreed Locations

Operational control, as cited by both petitioner and respondents, is a military term

referring to

[t]he authority to perform those functions of command over subordinate forces

involving organizing and employing commands and forces, assigning tasks,
designating objective, and giving authoritative direction necessary to accomplish the
mission.383

At times, though, operational control can mean something slightly different.

In JUSMAG Philippines v. National Labor Relations Commission, the Memorandum of
Agreement between the AFP and JUSMAG Philippines defined the term as follows:384

The term "Operational Control" includes, but is not limited to, all personnel
administrative actions, such as: hiring recommendations; firing recommendations;
position classification; discipline; nomination and approval of incentive awards; and
payroll computation.

Clearly, traditional standards define "operational control" as personnel control.

Philippine law, for instance, deems operational control as one exercised by police
officers and civilian authorities over their subordinates and is distinct from the
administrative control that they also exercise over police subordinates.385 Similarly, a
municipal mayor exercises operational control over the police within the municipal
government,386 just as city mayor possesses the same power over the police within the
city government.387

Thus, the legal concept of operational control involves authority over personnel in a
commander-subordinate relationship and does not include control over the Agreed
Locations in this particular case. Though not necessarily stated in EDCA provisions,
this interpretation is readily implied by the reference to the taking of "appropriate
measures to protect United States forces and United States contractors."

It is but logical, even necessary, for the U.S. to have operational control over its own
forces, in much the same way that the Philippines exercises operational control over
its own units.

For actual operations, EDCA is clear that any activity must be planned and pre-
approved by the MDB-SEB.388 This provision evinces the partnership aspect of
EDCA, such that both stakeholders have a say on how its provisions should be put
into effect.

b. Operational control vis--vis effective command and control

Petitioners assert that beyond the concept of operational control over personnel,
qualifying access to the Agreed Locations by the Philippine Designated Authority with
the phrase "consistent with operational safety and security requirements in accordance
with agreed procedures developed by the Parties" leads to the conclusion that the U.S.
exercises effective control over the Agreed Locations.389 They claim that if the
Philippines exercises possession of and control over a given area, its representative
should not have to be authorized by a special provision.390

For these reasons, petitioners argue that the "operational control" in EDCA is the
"effective command and control" in the 1947 MBA.391 In their Memorandum, they
distinguish effective command and control from operational control in U.S.
parlance.392 Citing the Doctrine for the Armed Forces of the United States, Joint
Publication 1, "command and control (C2)" is defined as "the exercise of authority
and direction by a properly designated commander over assigned and attached forces
in the accomplishment of the mission x x x."393 Operational control, on the other
hand, refers to "[t]hose functions of command over assigned forces involving the
composition of subordinate forces, the assignment of tasks, the designation of
objectives, the overall control of assigned resources, and the full authoritative
direction necessary to accomplish the mission."394
Two things demonstrate the errors in petitioners' line of argument.

Firstly, the phrase "consistent with operational safety and security requirements in
accordance with agreed procedures developed by the Parties" does not add any
qualification beyond that which is already imposed by existing treaties. To recall,
EDCA is based upon prior treaties, namely the VFA and the MDT.395 Treaties are in
themselves contracts from which rights and obligations may be claimed or
waived.396 In this particular case, the Philippines has already agreed to abide by the
security mechanisms that have long been in place between the U.S. and the
Philippines based on the implementation of their treaty relations.397

Secondly, the full document cited by petitioners contradicts the equation of

"operational control" with "effective command and control," since it defines the
terms quite differently, viz:398

Command and control encompasses the exercise of authority, responsibility, and

direction by a commander over assigned and attached forces to accomplish the
mission. Command at all levels is the art of motivating and directing people and
organizations into action to accomplish missions. Control is inherent in command. To
control is to manage and direct forces and functions consistent with a commander's
command authority. Control of forces and functions helps commanders and staffs
compute requirements, allocate means, and integrate efforts. Mission command is the
preferred method of exercising C2. A complete discussion of tenets, organization, and
processes for effective C2 is provided in Section B, "Command and Control of Joint
Forces," of Chapter V "Joint Command and Control."

Operational control is defined thus:399

OPCON is able to be delegated from a lesser authority than COCOM. It is the

authority to perform those functions of command over subordinate forces involving
organizing and employing commands and forces, assigning tasks, designating
objectives, and giving authoritative direction over all aspects of military operations
and joint training necessary to accomplish the mission. It should be delegated to and
exercised by the commanders of subordinate organizations; normally, this authority is
exercised through subordinate JFCs, Service, and/or functional component
commanders. OPCON provides authority to organize and employ commands and
forces as the commander considers necessary to accomplish assigned missions. It
does not include authoritative direction for logistics or matters of administration,
discipline, internal organization, or unit training. These elements of COCOM must be
specifically delegated by the CCDR. OPCON does include the authority to delineate
functional responsibilities and operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of combatant command, while
command and control is the overall power and responsibility exercised by the
commander with reference to a mission. Operational control is a narrower power and
must be given, while command and control is plenary and vested in a commander.
Operational control does not include the planning, programming, budgeting, and
execution process input; the assignment of subordinate commanders; the building of
relationships with Department of Defense agencies; or the directive authority for
logistics, whereas these factors are included in the concept of command and
control.400

This distinction, found in the same document cited by petitioners, destroys the very
foundation of the arguments they have built: that EDCA is the same as the MBA.

c. Limited operational control over the Agreed Locations only for construction
activitites

As petitioners assert, EDCA indeed contains a specific provision that gives to the U.S.
operational control within the Agreed Locations during construction activities.401 This
exercise of operational control is premised upon the approval by the MDB and the
SEB of the construction activity through consultation and mutual agreement on the
requirements and standards of the construction, alteration, or improvement.402

Despite this grant of operational control to the U.S., it must be emphasized that the
grant is only for construction activities. The narrow and limited instance wherein the
U.S. is given operational control within an Agreed Location cannot be equated with
foreign military control, which is so abhorred by the Constitution.

The clear import of the provision is that in the absence of construction activities,
operational control over the Agreed Location is vested in the Philippine authorities.
This meaning is implicit in the specific grant of operational control only during
construction activities. The principle of constitutional construction, "expressio unius est
exclusio alterius," means the failure to mention the thing becomes the ground for
inferring that it was deliberately excluded.403Following this construction, since EDCA
mentions the existence of U.S. operational control over the Agreed Locations for
construction activities, then it is quite logical to conclude that it is not exercised over
other activities.

Limited control does not violate the Constitution. The fear of the commissioners was
total control, to the point that the foreign military forces might dictate the terms of
their acts within the Philippines.404 More important, limited control does not mean an
abdication or derogation of Philippine sovereignty and legal jurisdiction over the
Agreed Locations. It is more akin to the extension of diplomatic courtesies and rights
to diplomatic agents,405 which is a waiver of control on a limited scale and subject to
the terms of the treaty.

This point leads us to the second standard envisioned by the framers of the
Constitution: that the Philippines must retain sovereignty and jurisdiction over its
territory.

ii. Second standard: Philippine sovereignty and applicable law

EDCA states in its Preamble the "understanding for the United States not to establish
a permanent military presence or base in the territory of the Philippines." Further on,
it likewise states the recognition that "all United States access to and use of facilities
and areas will be at the invitation of the Philippines and with full respect for the
Philippine Constitution and Philippine laws."

The sensitivity of EDCA provisions to the laws of the Philippines must be seen in
light of Philippine sovereignty and jurisdiction over the Agreed Locations.

Sovereignty is the possession of sovereign power,406 while jurisdiction is the

conferment by law of power and authority to apply the law.407 Article I of the 1987
Constitution states:

The national territory comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and
other submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal
waters of the Philippines. (Emphasis supplied)

From the text of EDCA itself, Agreed Locations are territories of the Philippines that
the U.S. forces are allowed to access and use.408 By withholding ownership of these
areas and retaining unrestricted access to them, the government asserts sovereignty
over its territory. That sovereignty exists so long as the Filipino people exist.409

Significantly, the Philippines retains primary responsibility for security with respect to
the Agreed Locations.410Hence, Philippine law remains in force therein, and it cannot
be said that jurisdiction has been transferred to the U.S. Even the previously discussed
necessary measures for operational control and defense over U.S. forces must be
coordinated with Philippine authorities.411
Jurisprudence bears out the fact that even under the former legal regime of the MBA,
Philippine laws continue to be in force within the bases.412 The difference between
then and now is that EDCA retains the primary jurisdiction of the Philippines over
the security of the Agreed Locations, an important provision that gives it actual
control over those locations. Previously, it was the provost marshal of the U.S. who
kept the peace and enforced Philippine law in the bases. In this instance, Philippine
forces act as peace officers, in stark contrast to the 1947 MBA provisions on
jurisdiction.413

iii. Third standard: must respect national security and territorial integrity

The last standard this Court must set is that the EDCA provisions on the Agreed
Locations must not impair or threaten the national security and territorial integrity of
the Philippines.

This Court acknowledged in Bayan v. Zamora that the evolution of technology has
essentially rendered the prior notion of permanent military bases obsolete.

Moreover, military bases established within the territory of another state is no longer
viable because of the alternatives offered by new means and weapons of warfare such
as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in
the sea even for months and years without returning to their home country. These
military warships are actually used as substitutes for a land-home base not only of
military aircraft but also of military personnel and facilities. Besides, vessels are mobile
as compared to a land-based military headquarters.414

The VFA serves as the basis for the entry of U.S. troops in a limited scope. It does
not allow, for instance, the re-establishment of the Subic military base or the Clark Air
Field as U.S. military reservations. In this context, therefore, this Court has
interpreted the restrictions on foreign bases, troops, or facilities as three independent
restrictions. In accord with this interpretation, each restriction must have its own
qualification.

Petitioners quote from the website http://en.wikipedia.org to define what a military

base is.415 While the source is not authoritative, petitioners make the point that the
Agreed Locations, by granting access and use to U.S. forces and contractors, are U.S.
bases under a different name.416 More important, they claim that the Agreed Locations
invite instances of attack on the Philippines from enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is not in the realm of
law, but of politics and policy. At the very least, we can say that under international
law, EDCA does not provide a legal basis for a justified attack on the Philippines.

In the first place, international law disallows any attack on the Agreed Locations
simply because of the presence of U.S. personnel. Article 2(4) of the United Nations
Charter states that "All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations."418 Any unlawful attack on the Philippines breaches the treaty, and triggers
Article 51 of the same charter, which guarantees the inherent right of individual or
collective self-defence.

Moreover, even if the lawfulness of the attack were not in question, international
humanitarian law standards prevent participants in an armed conflict from targeting
non-participants. International humanitarian law, which is the branch of international
law applicable to armed conflict, expressly limits allowable military conduct exhibited
by forces of a participant in an armed conflict.419 Under this legal regime, participants
to an armed conflict are held to specific standards of conduct that require them to
distinguish between combatants and non-combatants,420 as embodied by the Geneva
Conventions and their Additional Protocols.421

Corollary to this point, Professor John Woodcliffe, professor of international law at

the University of Leicester, noted that there is no legal consensus for what constitutes
a base, as opposed to other terms such as "facilities" or "installation."422 In strategic
literature, "base" is defined as an installation "over which the user State has a right to
exclusive control in an extraterritorial sense."423 Since this definition would exclude
most foreign military installations, a more important distinction must be made.

For Woodcliffe, a type of installation excluded from the definition of "base" is one
that does not fulfill a combat role. He cites an example of the use of the territory of a
state for training purposes, such as to obtain experience in local geography and
climactic conditions or to carry out joint exercises.424 Another example given is an
advanced communications technology installation for purposes of information
gathering and communication.425 Unsurprisingly, he deems these non-combat uses as
borderline situations that would be excluded from the functional understanding of
military bases and installations.426

By virtue of this ambiguity, the laws of war dictate that the status of a building or
person is presumed to be protected, unless proven otherwise.427 Moreover, the
principle of distinction requires combatants in an armed conflict to distinguish
between lawful targets428 and protected targets.429 In an actual armed conflict between
the U.S. and a third state, the Agreed Locations cannot be considered U.S. territory,
since ownership of territory even in times of armed conflict does not change.430

Hence, any armed attack by forces of a third state against an Agreed Location can
only be legitimate under international humanitarian law if it is against a bona fide U.S.
military base, facility, or installation that directly contributes to the military effort of
the U.S. Moreover, the third state's forces must take all measures to ensure that they
have complied with the principle of distinction (between combatants and non-
combatants).

There is, then, ample legal protection for the Philippines under international law that
would ensure its territorial integrity and national security in the event an Agreed
Location is subjected to attack. As EDCA stands, it does not create the situation so
feared by petitioners - one in which the Philippines, while not participating in an
armed conflict, would be legitimately targeted by an enemy of the U.S.431

In the second place, this is a policy question about the wisdom of allowing the
presence of U.S. personnel within our territory and is therefore outside the scope of
judicial review.

Evidently, the concept of giving foreign troops access to "agreed" locations, areas, or
facilities within the military base of another sovereign state is nothing new on the
international plane. In fact, this arrangement has been used as the framework for
several defense cooperation agreements, such as in the following:

1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432

2. 2009 U.S.-Colombia Defense Cooperation Agreement433

3. 2009 U.S.-Poland Status of Forces Agreement434

4. 2014 U.S.-Australia Force Posture Agreement435

5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436

In all of these arrangements, the host state grants U.S. forces access to their military
bases.437 That access is without rental or similar costs to the U.S.438 Further, U.S.
forces are allowed to undertake construction activities in, and make alterations and
improvements to, the agreed locations, facilities, or areas.439 As in EDCA, the host
states retain ownership and jurisdiction over the said bases.440
In fact, some of the host states in these agreements give specific military-related rights
to the U.S. For example, under Article IV(l) of the US.-Bulgaria Defense Cooperation
Agreement, "the United States forces x x x are authorized access to and may use agreed
facilities and areas x x x for staging and deploying of forces and materiel, with the
purpose of conducting x x x contingency operations and other missions, including
those undertaken in the framework of the North Atlantic Treaty." In some of these
agreements, host countries allow U.S. forces to construct facilities for the latters
exclusive use.441

Troop billeting, including construction of temporary structures, is nothing new.

In Lim v. Executive Secretary, the Court already upheld the Terms of Reference
of Balikatan 02-1, which authorized U.S. forces to set up "[t]emporary structures such
as those for troop billeting, classroom instruction and messing x x x during the
Exercise." Similar provisions are also in the Mutual Logistics Support Agreement of
2002 and 2007, which are essentially executive agreements that implement the VFA,
the MDT, and the 1953 Military Assistance Agreement. These executive agreements
similarly tackle the "reciprocal provision of logistic support, supplies, and
services,"442 which include "[b ]illeting, x x x operations support (and construction and
use of temporary structures incident to operations support), training services, x x x
storage services, x x x during an approved activity."443 These logistic supplies, support,
and services include temporary use of "nonlethal items of military equipment which
are not designated as significant military equipment on the U.S. Munitions List, during
an approved activity."444 The first Mutual Logistics Support Agreement has lapsed,
while the second one has been extended until 2017 without any formal objection
before this Court from the Senate or any of its members.

The provisions in EDCA dealing with Agreed Locations are analogous to those in the
aforementioned executive agreements. Instead of authorizing the building of
temporary structures as previous agreements have done, EDCA authorizes the U.S. to
build permanent structures or alter or improve existing ones for, and to be owned by,
the Philippines.445 EDCA is clear that the Philippines retains ownership of altered or
improved facilities and newly constructed permanent or non-relocatable
structures.446 Under EDCA, U.S. forces will also be allowed to use facilities and areas
for "training; x x x; support and related activities; x x x; temporary accommodation of
personnel; communications" and agreed activities.447

Concerns on national security problems that arise from foreign military equipment
being present in the Philippines must likewise be contextualized. Most
significantly, the VFA already authorizes the presence of U.S. military equipment
in the country. Article VII of the VFA already authorizes the U.S. to import into or
acquire in the Philippines "equipment, materials, supplies, and other property" that
will be used "in connection with activities" contemplated therein. The same section
also recognizes that "[t]itle to such property shall remain" with the US and that they
have the discretion to "remove such property from the Philippines at any time."

There is nothing novel, either, in the EDCA provision on the prepositioning and
storing of "defense equipment, supplies, and materiel,"448 since these are sanctioned in
the VFA. In fact, the two countries have already entered into various implementing
agreements in the past that are comparable to the present one. The Balikatan 02-
1 Terms of Reference mentioned in Lim v. Executive Secretary specifically recognizes
that Philippine and U.S. forces "may share x x x in the use of their resources,
equipment and other assets." Both the 2002 and 2007 Mutual Logistics Support
Agreements speak of the provision of support and services, including the
"construction and use of temporary structures incident to operations support" and
"storage services" during approved activities.449 These logistic supplies, support, and
services include the "temporary use of x x x nonlethal items of military equipment
which are not designated as significant military equipment on the U.S. Munitions List,
during an approved activity."450Those activities include "combined exercises and
training, operations and other deployments" and "cooperative efforts, such as
humanitarian assistance, disaster relief and rescue operations, and maritime anti-
pollution operations" within or outside Philippine territory.451 Under EDCA, the
equipment, supplies, and materiel that will be prepositioned at Agreed Locations
include "humanitarian assistance and disaster relief equipment, supplies, and materiel.
"452 Nuclear weapons are specifically excluded from the materiel that will be
prepositioned.

Therefore, there is no basis to invalidate EDCA on fears that it increases the threat to
our national security. If anything, EDCA increases the likelihood that, in an event
requiring a defensive response, the Philippines will be prepared alongside the U.S. to
defend its islands and insure its territorial integrity pursuant to a relationship built on
the MDT and VFA.

8. Others issues and concerns raised

A point was raised during the oral arguments that the language of the MDT only
refers to mutual help and defense in the Pacific area.453 We believe that any discussion
of the activities to be undertaken under EDCA vis-a-vis the defense of areas beyond
the Pacific is premature. We note that a proper petition on that issue must be filed
before we rule thereon. We also note that none of the petitions or memoranda has
attempted to discuss this issue, except only to theorize that the U.S. will not come to
our aid in the event of an attack outside of the Pacific. This is a matter of policy and is
beyond the scope of this judicial review.
In reference to the issue on telecommunications, suffice it to say that the initial
impression of the facility adverted to does appear to be one of those that require a
public franchise by way of congressional action under Section 11, Article XII of the
Constitution. As respondents submit, however, the system referred to in the
agreement does not provide telecommunications services to the public for
compensation.454 It is clear from Article VIl(2) of EDCA that the telecommunication
system is solely for the use of the U.S. and not the public in general, and that this
system will not interfere with that which local operators use. Consequently, a public
franchise is no longer necessary.

Additionally, the charge that EDCA allows nuclear weapons within Philippine
territory is entirely speculative. It is noteworthy that the agreement in fact specifies
that the prepositioned materiel shall not include nuclear weapons.455Petitioners argue
that only prepositioned nuclear weapons are prohibited by EDCA; and that, therefore,
the U.S. would insidiously bring nuclear weapons to Philippine territory.456 The
general prohibition on nuclear weapons, whether prepositioned or not, is already
expressed in the 1987 Constitution.457 It would be unnecessary or superfluous to
include all prohibitions already in the Constitution or in the law through a document
like EDCA.

Finally, petitioners allege that EDCA creates a tax exemption, which under the law
must originate from Congress. This allegation ignores jurisprudence on the
government's assumption of tax liability. EDCA simply states that the taxes on the
use of water, electricity, and public utilities are for the account of the Philippine
Government.458 This provision creates a situation in which a contracting party
assumes the tax liability of the other.459 In National Power Corporation v. Province of
Quezon, we distinguished between enforceable and unenforceable stipulations on the
assumption of tax liability. Afterwards, we concluded that an enforceable assumption
of tax liability requires the party assuming the liability to have actual interest in the
property taxed.460 This rule applies to EDCA, since the Philippine Government stands
to benefit not only from the structures to be built thereon or improved, but also from
the joint training with U.S. forces, disaster preparation, and the preferential use of
Philippine suppliers.461 Hence, the provision on the assumption of tax liability does
not constitute a tax exemption as petitioners have posited.

Additional issues were raised by petitioners, all relating principally to provisions

already sufficiently addressed above. This Court takes this occasion to emphasize that
the agreement has been construed herein as to absolutely disauthorize the violation of
the Constitution or any applicable statute. On the contrary, the applicability of
Philippine law is explicit in EDCA.
 EPILOGUE

The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by
noted personalities in Philippine history arises not so much from xenophobia, but
from a genuine desire for self-determination, nationalism, and above all a
commitment to ensure the independence of the Philippine Republic from any foreign
domination.

Mere fears, however, cannot curtail the exercise by the President of the Philippines of
his Constitutional prerogatives in respect of foreign affairs. They cannot cripple him
when he deems that additional security measures are made necessary by the times. As
it stands, the Philippines through the Department of Foreign Affairs has filed several
diplomatic protests against the actions of the People's Republic of China in the West
Philippine Sea;462 initiated arbitration against that country under the United Nations
Convention on the Law of the Sea;463 is in the process of negotiations with the Moro
Islamic Liberation Front for peace in Southern Philippines,464 which is the subject of a
current case before this Court; and faces increasing incidents of kidnappings of
Filipinos and foreigners allegedly by the Abu Sayyaf or the New People's Army.465 The
Philippine military is conducting reforms that seek to ensure the security and safety of
the nation in the years to come.466 In the future, the Philippines must navigate a world
in which armed forces fight with increasing sophistication in both strategy and
technology, while employing asymmetric warfare and remote weapons.

Additionally, our country is fighting a most terrifying enemy: the backlash of Mother
Nature. The Philippines is one of the countries most directly affected and damaged by
climate change. It is no coincidence that the record-setting tropical
cyclone Yolanda (internationally named Haiyan), one of the most devastating forces of
nature the world has ever seen hit the Philippines on 8 November 2013 and killed at
least 6,000 people.467 This necessitated a massive rehabilitation project.468 In the
aftermath, the U.S. military was among the first to extend help and support to the
Philippines.

That calamity brought out the best in the Filipinos as thousands upon thousands
volunteered their help, their wealth, and their prayers to those affected. It also
brought to the fore the value of having friends in the international community.

In order to keep the peace in its archipelago in this region of the world, and to sustain
itself at the same time against the destructive forces of nature, the Philippines will
need friends. Who they are, and what form the friendships will take, are for the
President to decide. The only restriction is what the Constitution itself expressly
prohibits. It appears that this overarching concern for balancing constitutional
requirements against the dictates of necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains

consistent with existing laws and treaties that it purports to implement.

WHEREFORE, we hereby DISMISS the petitions.

SO ORDERED.
 EN BANC

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

BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT,

BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente),
BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.),
DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG
PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and
the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE
SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS
SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY
ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE,
SENATE PRESIDENT MARCELO FERNAN, SENATOR
FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR
RODOLFO BIAZON, and SENATOR FRANCISCO TATAD,
respondents.

[G.R. No. 138572. October 10, 2000]

PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA),

EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L.
SABIO, AND RAMON A. GONZALES, petitioners, vs. HON.
RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO
MERCADO, as Secretary of National Defense, and HON. DOMINGO
L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.

[G.R. No. 138587. October 10, 2000]

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA

III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA,
DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO
 B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and
RODOLFO G. BIAZON, respondents.

[G.R. No. 138680. October 10, 2000]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its National

President, Jose Aguila Grapilon, petitioners, vs. JOSEPH EJERCITO
ESTRADA, in his capacity as President, Republic of the Philippines,
and HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign
Affairs, respondents.

[G.R. No. 138698. October 10, 2000]

JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-

AVENCEA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO,
FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN,
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF
FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL
DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN,
SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND
ALL OTHER PERSONS ACTING THEIR CONTROL,
SUPERVISION, DIRECTION, AND INSTRUCTION IN
RELATION TO THE VISITING FORCES AGREEMENT
(VFA), respondents.

DECISION
BUENA, J.:

Confronting the Court for resolution in the instant consolidated petitions for
certiorari and prohibition are issues relating to, and borne by, an agreement forged in
the turn of the last century between the Republic of the Philippines and the United
States of America -the Visiting Forces Agreement.
 The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a
Military Bases Agreement which formalized, among others, the use of installations in
the Philippine territory by United States military personnel. To further strengthen
their defense and security relationship, the Philippines and the United States entered
into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed
to respond to any external armed attack on their territory, armed forces, public
vessels, and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in
1991, the Philippines and the United States negotiated for a possible extension of the
military bases agreement. On September 16, 1991, the Philippine Senate rejected the
proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect,
would have extended the presence of US military bases in the Philippines. [2] With the
expiration of the RP-US Military Bases Agreement, the periodic military exercises
conducted between the two countries were held in abeyance. Notwithstanding, the
defense and security relationship between the Philippines and the United States of
America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy
Assistant Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel,
headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on
the complementing strategic interests of the United States and the Philippines in the
Asia-Pacific region. Both sides discussed, among other things, the possible elements
of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on
the VFA led to a consolidated draft text, which in turn resulted to a final series of
conferences and negotiations[3] that culminated in Manila on January 12 and 13, 1998.
Thereafter, then President Fidel V. Ramos approved the VFA, which was respectively
signed by public respondent Secretary Siazon and Unites States Ambassador Thomas
Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary
of Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive
Secretary Ronaldo Zamora, officially transmitted to the Senate of the
Philippines,[5] the Instrument of Ratification, the letter of the President[6] and the
VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution.
The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired
by Senator Blas F. Ople, and its Committee on National Defense and Security, chaired
by Senator Rodolfo G. Biazon, for their joint consideration and
recommendation. Thereafter, joint public hearings were held by the two
Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
[8]
443 recommending the concurrence of the Senate to the VFA and the creation of a
Legislative Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the
Senate, by a two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was
then re-numbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of
Notes between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the
mechanism for regulating the circumstances and conditions under which US Armed
Forces and defense personnel may be present in the Philippines, and is quoted in its
full text, hereunder:

Article I
Definitions

As used in this Agreement, United States personnel means United States military
and civilian personnel temporarily in the Philippines in connection with activities
approved by the Philippine Government.

Within this definition:

1. The term military personnel refers to military members of the United States
Army, Navy, Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals
of, nor ordinary residents in the Philippines and who are employed by the
United States armed forces or who are accompanying the United States
armed forces, such as employees of the American Red Cross and the
United Services Organization.

Article II
Respect for Law

It is the duty of the United States personnel to respect the laws of the Republic of
the Philippines and to abstain from any activity inconsistent with the spirit of this
agreement, and, in particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within its authority to
ensure that this is done.

Article III
Entry and Departure

1. The Government of the Philippines shall facilitate the admission of United

States personnel and their departure from the Philippines in connection with
activities covered by this agreement.

2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.

3. The following documents only, which shall be presented on demand, shall be

required in respect of United States military personnel who enter the
Philippines:

(a) personal identity card issued by the appropriate United States authority
showing full name, date of birth, rank or grade and service number (if
any), branch of service and photograph;

(b) individual or collective document issued by the appropriate United States

authority, authorizing the travel or visit and identifying the individual or
group as United States military personnel; and

(c) the commanding officer of a military aircraft or vessel shall present a

declaration of health, and when required by the cognizant representative
of the Government of the Philippines, shall conduct a quarantine
inspection and will certify that the aircraft or vessel is free from
quarantinable diseases. Any quarantine inspection of United States aircraft
or United States vessels or cargoes thereon shall be conducted by the
United States commanding officer in accordance with the international
health regulations as promulgated by the World Health Organization, and
mutually agreed procedures.

4. United States civilian personnel shall be exempt from visa requirements but
shall present, upon demand, valid passports upon entry and departure of the
Philippines.

5. If the Government of the Philippines has requested the removal of any United
States personnel from its territory, the United States authorities shall be
 responsible for receiving the person concerned within its own territory or
otherwise disposing of said person outside of the Philippines.

Article IV
Driving and Vehicle Registration

1. Philippine authorities shall accept as valid, without test or fee, a driving permit
or license issued by the appropriate United States authority to United States
personnel for the operation of military or official vehicles.

2. Vehicles owned by the Government of the United States need not be

registered, but shall have appropriate markings.

Article V
Criminal Jurisdiction

1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over United States

personnel with respect to offenses committed within the Philippines and
punishable under the law of the Philippines.
(b) United States military authorities shall have the right to exercise within
the Philippines all criminal and disciplinary jurisdiction conferred on
them by the military law of the United States over United States
personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United
States personnel with respect to offenses, including offenses relating
to the security of the Philippines, punishable under the laws of the
Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United
States personnel with respect to offenses, including offenses relating
to the security of the United States, punishable under the laws of the
United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an
offense relating to security means:

(1) treason;

(2) sabotage, espionage or violation of any law relating to national

defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following
rules shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction
over all offenses committed by United States personnel, except in cases
provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise
jurisdiction over United States personnel subject to the military law of
the United States in relation to.
(1) offenses solely against the property or security of the United States or
offenses solely against the property or person of United States
personnel; and
(2) offenses arising out of any act or omission done in performance of
official duty.
(c) The authorities of either government may request the authorities of the
other government to waive their primary right to exercise jurisdiction in
a particular case.
(d) Recognizing the responsibility of the United States military authorities
to maintain good order and discipline among their forces, Philippine
authorities will, upon request by the United States, waive their primary
right to exercise jurisdiction except in cases of particular importance to
the Philippines. If the Government of the Philippines determines that
the case is of particular importance, it shall communicate such
determination to the United States authorities within twenty (20) days
after the Philippine authorities receive the United States request.
(e) When the United States military commander determines that an offense
charged by authorities of the Philippines against United states personnel
arises out of an act or omission done in the performance of official duty,
the commander will issue a certificate setting forth such determination.
This certificate will be transmitted to the appropriate authorities of the
Philippines and will constitute sufficient proof of performance of official
duty for the purposes of paragraph 3(b)(2) of this Article. In those cases
where the Government of the Philippines believes the circumstances of
the case require a review of the duty certificate, United States military
authorities and Philippine authorities shall consult immediately.
Philippine authorities at the highest levels may also present any
information bearing on its validity. United States military authorities shall
take full account of the Philippine position. Where appropriate, United
 States military authorities will take disciplinary or other action against
offenders in official duty cases, and notify the Government of the
Philippines of the actions taken.
(f) If the government having the primary right does not exercise
jurisdiction, it shall notify the authorities of the other government as
soon as possible.
(g) The authorities of the Philippines and the United States shall notify each
other of the disposition of all cases in which both the authorities of the
Philippines and the United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the
Philippines and United States shall assist each other in the arrest of United
States personnel in the Philippines and in handling them over to authorities
who are to exercise jurisdiction in accordance with the provisions of this
article.
5. United States military authorities shall promptly notify Philippine
authorities of the arrest or detention of United States personnel who are
subject of Philippine primary or exclusive jurisdiction. Philippine
authorities shall promptly notify United States military authorities of the
arrest or detention of any United States personnel.
6. The custody of any United States personnel over whom the Philippines is
to exercise jurisdiction shall immediately reside with United States military
authorities, if they so request, from the commission of the offense until
completion of all judicial proceedings. United States military authorities
shall, upon formal notification by the Philippine authorities and without
delay, make such personnel available to those authorities in time for any
investigative or judicial proceedings relating to the offense with which the
person has been charged in extraordinary cases, the Philippine Government
shall present its position to the United States Government regarding
custody, which the United States Government shall take into full account.
In the event Philippine judicial proceedings are not completed within one
year, the United States shall be relieved of any obligations under this
paragraph. The one-year period will not include the time necessary to
appeal. Also, the one-year period will not include any time during which
scheduled trial procedures are delayed because United States authorities,
after timely notification by Philippine authorities to arrange for the
presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine
authorities shall assist each other in the carrying out of all necessary
 investigation into offenses and shall cooperate in providing for the
attendance of witnesses and in the collection and production of evidence,
including seizure and, in proper cases, the delivery of objects connected
with an offense.
8. When United States personnel have been tried in accordance with the
provisions of this Article and have been acquitted or have been convicted
and are serving, or have served their sentence, or have had their sentence
remitted or suspended, or have been pardoned, they may not be tried again
for the same offense in the Philippines. Nothing in this paragraph,
however, shall prevent United States military authorities from trying United
States personnel for any violation of rules of discipline arising from the act
or omission which constituted an offense for which they were tried by
Philippine authorities.
9. When United States personnel are detained, taken into custody, or
prosecuted by Philippine authorities, they shall be accorded all procedural
safeguards established by the law of the Philippines. At the minimum,
United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges
made against them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine
such witnesses;
(d) To present evidence in their defense and to have compulsory process
for obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the
same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United
States authorities, and to have such authorities present at all judicial
proceedings. These proceedings shall be public unless the court, in
accordance with Philippine laws, excludes persons who have no role in
the proceedings.
10. The confinement or detention by Philippine authorities of United States
personnel shall be carried out in facilities agreed on by appropriate
Philippine and United States authorities. United States Personnel serving
 sentences in the Philippines shall have the right to visits and material
assistance.
11. United States personnel shall be subject to trial only in Philippine courts
of ordinary jurisdiction, and shall not be subject to the jurisdiction of
Philippine military or religious courts.

Article VI
Claims

1. Except for contractual arrangements, including United States foreign

military sales letters of offer and acceptance and leases of military
equipment, both governments waive any and all claims against each other
for damage, loss or destruction to property of each others armed forces or
for death or injury to their military and civilian personnel arising from
activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and
those to which paragraph 1 applies, the United States Government, in
accordance with United States law regarding foreign claims, will pay just
and reasonable compensation in settlement of meritorious claims for
damage, loss, personal injury or death, caused by acts or omissions of
United States personnel, or otherwise incident to the non-combat activities
of the United States forces.

Article VII
Importation and Exportation

1. United States Government equipment, materials, supplies, and other

property imported into or acquired in the Philippines by or on behalf of the
United States armed forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties, taxes and other
similar charges. Title to such property shall remain with the United States,
which may remove such property from the Philippines at any time, free
from export duties, taxes, and other similar charges. The exemptions
provided in this paragraph shall also extend to any duty, tax, or other
similar charges which would otherwise be assessed upon such property
after importation into, or acquisition within, the Philippines. Such property
may be removed from the Philippines, or disposed of therein, provided
that disposition of such property in the Philippines to persons or entities
not entitled to exemption from applicable taxes and duties shall be subject
 to payment of such taxes, and duties and prior approval of the Philippine
Government.
2. Reasonable quantities of personal baggage, personal effects, and other
property for the personal use of United States personnel may be imported
into and used in the Philippines free of all duties, taxes and other similar
charges during the period of their temporary stay in the Philippines.
Transfers to persons or entities in the Philippines not entitled to import
privileges may only be made upon prior approval of the appropriate
Philippine authorities including payment by the recipient of applicable
duties and taxes imposed in accordance with the laws of the Philippines.
The exportation of such property and of property acquired in the
Philippines by United States personnel shall be free of all Philippine duties,
taxes, and other similar charges.

Article VIII
Movement of Vessels and Aircraft

1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in
accordance with procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The
movement of vessels shall be in accordance with international custom and
practice governing such vessels, and such agreed implementing
arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed
forces shall not be subject to the payment of landing or port fees,
navigation or over flight charges, or tolls or other use charges, including
light and harbor dues, while in the Philippines. Aircraft operated by or for
the United States armed forces shall observe local air traffic control
regulations while in the Philippines. Vessels owned or operated by the
United States solely on United States Government non-commercial service
shall not be subject to compulsory pilotage at Philippine ports.

Article IX
Duration and Termination

This agreement shall enter into force on the date on which the parties have
notified each other in writing through the diplomatic channel that they have
completed their constitutional requirements for entry into force. This agreement
 shall remain in force until the expiration of 180 days from the date on which
either party gives the other party notice in writing that it desires to terminate the
agreement.

Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as

legislators, non-governmental organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute to herein respondents grave abuse of
discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I

Do petitioners have legal standing as concerned citizens, taxpayers, or legislators

to question the constitutionality of the VFA?

II

Is the VFA governed by the provisions of Section 21, Article VII or of Section
25, Article XVIII of the Constitution?

III

Does the VFA constitute an abdication of Philippine sovereignty?

a. Are Philippine courts deprived of their jurisdiction to hear and try offenses
committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable
by reclusion perpetua or higher?
IV

Does the VFA violate:

a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from
taxes and duties for the equipment, materials supplies and other properties
imported into or acquired in the Philippines by, or on behalf, of the US
Armed Forces?
 LOCUS STANDI

At the outset, respondents challenge petitioners standing to sue, on the ground

that the latter have not shown any interest in the case, and that petitioners failed to
substantiate that they have sustained, or will sustain direct injury as a result of the
operation of the VFA.[12] Petitioners, on the other hand, counter that the validity or
invalidity of the VFA is a matter of transcendental importance which justifies their
standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute
must show not only that the law is invalid, but also that he has sustained or in is in
immediate, or imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way. He must
show that he has been, or is about to be, denied some right or privilege to which he is
lawfully entitled, or that he is about to be subjected to some burdens or penalties by
reason of the statute complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court,
that they have sustained, or are in danger of sustaining any direct injury as a result of
the enforcement of the VFA. As taxpayers, petitioners have not established that the
VFA involves the exercise by Congress of its taxing or spending powers.[15] On this
point, it bears stressing that a taxpayers suit refers to a case where the act complained
of directly involves the illegal disbursement of public funds derived from
taxation.[16] Thus, in Bugnay Const. & Development Corp. vs. Laron[17], we held:

x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be

benefited or injured by the judgment or entitled to the avails of the suit as a real party
in interest. Before he can invoke the power of judicial review, he must specifically
prove that he has sufficient interest in preventing the illegal expenditure of money
raised by taxation and that he will sustain a direct injury as a result of the enforcement
of the questioned statute or contract. It is not sufficient that he has merely a general
interest common to all members of the public.

Clearly, inasmuch as no public funds raised by taxation are involved in this case,
and in the absence of any allegation by petitioners that public funds are being
misspent or illegally expended, petitioners, as taxpayers, have no legal standing to
assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as
petitioners-legislators, do not possess the requisite locus standi to maintain the present
suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,[18] sustained the legal standing of a member of the Senate and the House of
Representatives to question the validity of a presidential veto or a condition imposed
on an item in an appropriation bull, we cannot, at this instance, similarly uphold
petitioners standing as members of Congress, in the absence of a clear showing of any
direct injury to their person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the
delegation of the power of Congress to grant tax exemptions, are more apparent than
real. While it may be true that petitioners pointed to provisions of the VFA which
allegedly impair their legislative powers, petitioners failed however to sufficiently show
that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of
standing in these cases. As aptly observed by the Solicitor General, the IBP lacks the
legal capacity to bring this suit in the absence of a board resolution from its Board of
Governors authorizing its National President to commence the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of its sound
discretion, brushes aside the procedural barrier and takes cognizance of the petitions,
as we have done in the early Emergency Powers Cases,[20] where we had occasion to
rule:

x x x ordinary citizens and taxpayers were allowed to question the constitutionality of

several executive orders issued by President Quirino although they were involving
only an indirect and general interest shared in common with the public. The Court
dismissed the objection that they were not proper parties and ruled
that transcendental importance to the public of these cases demands that they
be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure. We have since then applied the exception in many other
cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, 175 SCRA 343). (Underscoring Supplied)

This principle was reiterated in the subsequent cases of Gonzales vs.

COMELEC,[21] Daza vs. Singson,[22] and Basco vs. Phil. Amusement and
Gaming Corporation,[23] where we emphatically held:

Considering however the importance to the public of the case at bar, and in keeping
with the Courts duty, under the 1987 Constitution, to determine whether or not the
other branches of the government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them,
the Court has brushed aside technicalities of procedure and has taken cognizance of
this petition. x x x
 Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt
ruled that in cases of transcendental importance, the Court may relax the standing
requirements and allow a suit to prosper even where there is no direct injury to
the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based
on the doctrine of separation of powers, which enjoins upon the departments of the
government a becoming respect for each others acts,[25] this Court nevertheless
resolves to take cognizance of the instant petitions.

APPLICABLE CONSTITUTIONAL PROVISION

One focal point of inquiry in this controversy is the determination of which

provision of the Constitution applies, with regard to the exercise by the senate of its
constitutional power to concur with the VFA. Petitioners argue that Section 25,
Article XVIII is applicable considering that the VFA has for its subject the presence
of foreign military troops in the Philippines. Respondents, on the contrary, maintain
that Section 21, Article VII should apply inasmuch as the VFA is not a basing
arrangement but an agreement which involves merely the temporary visits of United
States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the
concurrence of the Senate on treaties or international agreements. Section 21, Article
VII, which herein respondents invoke, reads:

No treaty or international agreement shall be valid and effective unless concurred in

by at least two-thirds of all the Members of the Senate.

Section 25, Article XVIII, provides:

After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign
military bases, troops, or facilities shall not be allowed in the Philippines except under
a treaty duly concurred in by the senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State.

Section 21, Article VII deals with treatise or international agreements in general,
in which case, the concurrence of at least two-thirds (2/3) of all the Members of the
Senate is required to make the subject treaty, or international agreement, valid and
binding on the part of the Philippines. This provision lays down the general rule on
treatise or international agreements and applies to any form of treaty with a wide
variety of subject matter, such as, but not limited to, extradition or tax treatise or
those economic in nature. All treaties or international agreements entered into by the
Philippines, regardless of subject matter, coverage, or particular designation or
appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties
which involve the presence of foreign military bases, troops or facilities in the
Philippines. Under this provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional requirements and to consider
the agreement binding on the Philippines. Section 25, Article XVIII further requires
that foreign military bases, troops, or facilities may be allowed in the Philippines only
by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes
cast in a national referendum held for that purpose if so required by Congress, and
recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from
contradicting each other, actually share some common ground. These constitutional
provisions both embody phrases in the negative and thus, are deemed prohibitory in
mandate and character. In particular, Section 21 opens with the clause No treaty x x x,
and Section 25 contains the phrase shall not be allowed. Additionally, in both
instances, the concurrence of the Senate is indispensable to render the treaty or
international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under
Section 21, Article VII, and that the Senate extended its concurrence under the same
provision, is immaterial. For in either case, whether under Section 21, Article VII or
Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of
the Senate is mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United
States troops and personnel visiting the Philippines. It provides for the guidelines to
govern such visits of military personnel, and further defines the rights of the United
States and the Philippine government in the matter of criminal jurisdiction, movement
of vessel and aircraft, importation and exportation of equipment, materials and
supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties
involving foreign military bases, troops, or facilities, should apply in the instant
case. To a certain extent and in a limited sense, however, the provisions of section 21,
Article VII will find applicability with regard to the issue and for the sole purpose of
determining the number of votes required to obtain the valid concurrence of the
Senate, as will be further discussed hereunder.
 It is a finely-imbedded principle in statutory construction that a special provision
or law prevails over a general one. Lex specialis derogat generali. Thus, where
there is in the same statute a particular enactment and also a general one which, in its
most comprehensive sense, would include what is embraced in the former, the
particular enactment must be operative, and the general enactment must be taken to
affect only such cases within its general language which are not within the provision
of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:

x x x that another basic principle of statutory construction mandates that general

legislation must give way to a special legislation on the same subject, and generally be
so interpreted as to embrace only cases in which the special provisions are not
applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute
prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where
two statutes are of equal theoretical application to a particular case, the one designed
therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).

Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to

mere transient agreements for the reason that there is no permanent placing of
structure for the establishment of a military base. On this score, the Constitution
makes no distinction between transient and permanent. Certainly, we find nothing in
Section 25, Article XVIII that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the
Court should not distinguish- Ubi lex non distinguit nec nos distinguire
debemos.
In like manner, we do not subscribe to the argument that Section 25, Article
XVIII is not controlling since no foreign military bases, but merely foreign troops and
facilities, are involved in the VFA. Notably, a perusal of said constitutional provision
reveals that the proscription covers foreign military bases, troops, or facilities. Stated
differently, this prohibition is not limited to the entry of troops and facilities without
any foreign bases being established. The clause does not refer to foreign military bases,
troops, or facilities collectively but treats them as separate and independent subjects. The
use of comma and the disjunctive word or clearly signifies disassociation and
independence of one thing from the others included in the enumeration, [28] such that,
the provision contemplates three different situations - a military treaty the subject of
which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any
of the three standing alone places it under the coverage of Section 25, Article XVIII.
 To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this
interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner
Bernas.
This formulation speaks of three things: foreign military bases, troops or
facilities. My first question is: If the country does enter into such kind of a
treaty, must it cover the three-bases, troops or facilities-or could the
treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or
it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter
into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a
treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more,
we will find some. We just want to cover everything.[29] (Underscoring
Supplied)
Moreover, military bases established within the territory of another state is no
longer viable because of the alternatives offered by new means and weapons of
warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can
stay afloat in the sea even for months and years without returning to their home
country. These military warships are actually used as substitutes for a land-home base
not only of military aircraft but also of military personnel and facilities.Besides, vessels
are mobile as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the
requirements of Section 25 were complied with when the Senate gave its concurrence
to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in
the country, unless the following conditions are sufficiently met, viz: (a) it must be
under a treaty; (b) the treaty must be duly concurred in by the Senateand, when so
required by congress, ratified by a majority of the votes cast by the people in a
national referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the
VFA. The concurrence handed by the Senate through Resolution No. 18 is in
accordance with the provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate mentioned in Section
25, Article XVIII, the provision in the latter article requiring ratification by a majority
of the votes cast in a national referendum being unnecessary since Congress has not
required it.
As to the matter of voting, Section 21, Article VII particularly requires that a
treaty or international agreement, to be valid and effective, must be concurred in by
at least two-thirds of all the members of the Senate. On the other hand, Section
25, Article XVIII simply provides that the treaty be duly concurred in by the
Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the
members of the Senate is clearly required so that the concurrence contemplated by
law may be validly obtained and deemed present. While it is true that Section 25,
Article XVIII requires, among other things, that the treaty-the VFA, in the instant
case-be duly concurred in by the Senate, it is very true however that said provision
must be related and viewed in light of the clear mandate embodied in Section 21,
Article VII, which in more specific terms, requires that the concurrence of a treaty, or
international agreement, be made by a two -thirds vote of all the members of the
Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section
21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be
construed in relation to the provisions of Section 21, Article VII. In a more particular
language, the concurrence of the Senate contemplated under Section 25, Article
XVIII means that at least two-thirds of all the members of the Senate favorably vote
to concur with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be
composed of twenty-four (24) Senators.[30]Without a tinge of doubt, two-thirds (2/3)
of this figure, or not less than sixteen (16) members, favorably acting on the proposal
is an unquestionable compliance with the requisite number of votes mentioned in
Section 21 of Article VII. The fact that there were actually twenty-three (23)
incumbent Senators at the time the voting was made,[31] will not alter in any significant
way the circumstance that more than two-thirds of the members of the Senate
concurred with the proposed VFA, even if the two-thirds vote requirement is based
on this figure of actual members (23). In this regard, the fundamental law is clear that
two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to render
compliance with the strict constitutional mandate of giving concurrence to the subject
treaty.
 Having resolved that the first two requisites prescribed in Section 25, Article
XVIII are present, we shall now pass upon and delve on the requirement that the
VFA should be recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25,
Article XVIII, means that the VFA should have the advice and consent of the United
States Senate pursuant to its own constitutional process, and that it should not be
considered merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador
Hubbard stating that the VFA is binding on the United States Government is
conclusive, on the point that the VFA is recognized as a treaty by the United States of
America. According to respondents, the VFA, to be binding, must only be accepted as
a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that
the other contracting party accepts or acknowledges the agreement as a treaty.[32] To
require the other contracting state, the United States of America in this case, to
submit the VFA to the United States Senate for concurrence pursuant to its
Constitution,[33] is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be
given their ordinary meaning except where technical terms are employed, in which
case the significance thus attached to them prevails. Its language should be
understood in the sense they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as
an executive agreement because, under international law, an executive agreement is as
binding as a treaty.[35] To be sure, as long as the VFA possesses the elements of an
agreement under international law, the said agreement is to be taken equally as a
treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an
international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation.[36] There are many other terms
used for a treaty or international agreement, some of which are: act, protocol,
agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes,
pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international agreements included under the
general term treaty have little or no legal significance. Certain terms are useful, but
they furnish little more than mere description.[37]
 Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the use
of those terms, or to the meanings which may be given to them in the internal law of
the State.
Thus, in international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned, as long as the negotiating
functionaries have remained within their powers.[38] International law continues to
make no distinction between treaties and executive agreements: they are equally
binding obligations upon nations.[39]
In our jurisdiction, we have recognized the binding effect of executive agreements
even without the concurrence of the Senate or Congress. In Commissioner of
Customs vs. Eastern Sea Trading,[40] we had occasion to pronounce:

x x x the right of the Executive to enter into binding agreements without the necessity
of subsequent congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects
as commercial and consular relations, most-favored-nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and the
settlement of claims. The validity of these has never been seriously questioned by our courts.

xxxxxxxxx

Furthermore, the United States Supreme Court has expressly recognized the validity
and constitutionality of executive agreements entered into without Senate
approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis
Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301
U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs.
U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law
Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol.
2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.],
pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth,
International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis
Ours)

The deliberations of the Constitutional Commission which drafted the 1987

Constitution is enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of
the other state is concerned, that is entirely their concern under their own laws.
 FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have
done everything to make it a treaty, then as far as we are concerned, we will
accept it as a treaty.[41]
The records reveal that the United States Government, through Ambassador
Thomas C. Hubbard, has stated that the United States government has fully
committed to living up to the terms of the VFA.[42] For as long as the united States of
America accepts or acknowledges the VFA as a treaty, and binds itself further to
comply with its obligations under the treaty, there is indeed marked compliance with
the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the
concurrence of the Senate should be taken as a clear an unequivocal expression of our
nations consent to be bound by said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the
state or of the government, as the case may be, through which the formal acceptance
of the treaty is proclaimed.[43] A State may provide in its domestic legislation the
process of ratification of a treaty. The consent of the State to be bound by a treaty is
expressed by ratification when: (a) the treaty provides for such ratification, (b) it is
otherwise established that the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the treaty subject to ratification,
or (d) the intention of the State to sign the treaty subject to ratification appears from
the full powers of its representative, or was expressed during the negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as
commonly believed, in the legislature. The role of the Senate is limited only to giving
or withholding its consent, or concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final acceptance, and with
the exchange of notes between the Philippines and the United States of America, it
now becomes obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement. Thus, no less than
Section 2, Article II of the Constitution,[46]declares that the Philippines adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with
all nations.
As a member of the family of nations, the Philippines agrees to be bound by
generally accepted rules for the conduct of its international relations. While the
international obligation devolves upon the state and not upon any particular branch,
institution, or individual member of its government, the Philippines is nonetheless
responsible for violations committed by any branch or subdivision of its government
or any official thereof. As an integral part of the community of nations, we are
responsible to assure that our government, Constitution and laws will carry out our
international obligation.[47] Hence, we cannot readily plead the Constitution as a
convenient excuse for non-compliance with our obligations, duties and
responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted
by the International Law Commission in 1949 provides: Every State has the duty to carry
out in good faith its obligations arising from treaties and other sources of international law, and it
may not invoke provisions in its constitution or its laws as an excuse for failure to perform this
duty.[48]
Equally important is Article 26 of the convention which provides that Every
treaty in force is binding upon the parties to it and must be performed by them in
good faith. This is known as the principle of pacta sunt servanda which preserves the
sanctity of treaties and have been one of the most fundamental principles of positive
international law, supported by the jurisprudence of international tribunals.[49]

NO GRAVE ABUSE OF DISCRETION

In the instant controversy, the President, in effect, is heavily faulted for exercising
a power and performing a task conferred upon him by the Constitution-the power to
enter into and ratify treaties. Through the expediency of Rule 65 of the Rules of
Court, petitioners in these consolidated cases impute grave abuse of discretion on
the part of the chief Executive in ratifying the VFA, and referring the same to the
Senate pursuant to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the
power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive
duty enjoined or to act at all in contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as
head of State, is the sole organ and authority in the external affairs of the country. In
many ways, the President is the chief architect of the nations foreign policy; his
dominance in the field of foreign relations is (then) conceded.[51] Wielding vast powers
an influence, his conduct in the external affairs of the nation, as Jefferson describes,
is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the
Constitution vests the same in the President, subject only to the concurrence of at
least two-thirds vote of all the members of the Senate. In this light, the negotiation of
the VFA and the subsequent ratification of the agreement are exclusive acts which
pertain solely to the President, in the lawful exercise of his vast executive and
diplomatic powers granted him no less than by the fundamental law itself. Into the field
of negotiation the Senate cannot intrude, and Congress itself is powerless to invade
it.[53] Consequently, the acts or judgment calls of the President involving the VFA-
specifically the acts of ratification and entering into a treaty and those necessary or
incidental to the exercise of such principal acts - squarely fall within the sphere of his
constitutional powers and thus, may not be validly struck down, much less calibrated
by this Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in
submitting the same to the Senate for concurrence, acted within the confines and
limits of the powers vested in him by the Constitution. It is of no moment that the
President, in the exercise of his wide latitude of discretion and in the honest belief
that the VFA falls within the ambit of Section 21, Article VII of the Constitution,
referred the VFA to the Senate for concurrence under the aforementioned
provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical
abuse of judgment, may be imputed to the President in his act of ratifying the VFA
and referring the same to the Senate for the purpose of complying with the
concurrence requirement embodied in the fundamental law. In doing so, the President
merely performed a constitutional task and exercised a prerogative that chiefly
pertains to the functions of his office. Even if he erred in submitting the VFA to the
Senate for concurrence under the provisions of Section 21 of Article VII, instead of
Section 25 of Article XVIII of the Constitution, still, the President may not be faulted
or scarred, much less be adjudged guilty of committing an abuse of discretion in some
patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has
broadened the scope of judicial inquiry into areas normally left to the political
departments to decide, such as those relating to national security, it has not altogether
done away with political questions such as those which arise in the field of foreign
relations.[54] The High Tribunals function, as sanctioned by Article VIII, Section 1, is
merely (to) check whether or not the governmental branch or agency has gone beyond the constitutional
limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing (of) grave
abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its
corrective powerIt has no power to look into what it thinks is apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the
Senate alone. Thus, once the Senate[56] performs that power, or exercises its
prerogative within the boundaries prescribed by the Constitution, the concurrence
cannot, in like manner, be viewed to constitute an abuse of power, much less grave
abuse thereof. Corollarily, the Senate, in the exercise of its discretion and acting within
the limits of such power, may not be similarly faulted for having simply performed a
task conferred and sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in
character;[57] the Senate, as an independent body possessed of its own erudite mind,
has the prerogative to either accept or reject the proposed agreement, and whatever
action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom
rather than the legality of the act. In this sense, the Senate partakes a principal, yet
delicate, role in keeping the principles of separation of powers and of checks and
balances alive and vigilantly ensures that these cherished rudiments remain true to their
form in a democratic government such as ours. The Constitution thus animates,
through this treaty-concurring power of the Senate, a healthy system of checks and
balances indispensable toward our nations pursuit of political maturity and
growth. True enough, rudimentary is the principle that matters pertaining to the
wisdom of a legislative act are beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of
respondents, this Court- as the final arbiter of legal controversies and staunch sentinel
of the rights of the people - is then without power to conduct an incursion and
meddle with such affairs purely executive and legislative in character and nature. For
the Constitution no less, maps out the distinct boundaries and limits the metes and
bounds within which each of the three political branches of government may exercise
the powers exclusively and essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are
hereby DISMISSED.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 151445 April 11, 2002

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

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

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

SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors,

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

DISSENTING OPINION

SEPARATE OPINION

DE LEON, JR., J.:

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

The facts are as follows:

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

Prior to the year 2002, the last "Balikatan" was held in 1995. This was due to the
paucity of any formal agreement relative to the treatment of United States personnel
visiting the Philippines. In the meantime, the respective governments of the two
countries agreed to hold joint exercises on a reduced scale. The lack of consensus was
eventually cured when the two nations concluded the Visiting Forces Agreement (V
FA) in 1999.

The entry of American troops into Philippine soil is proximately rooted in the
international anti-terrorism campaign declared by President George W. Bush in
reaction to the tragic events that occurred on September 11, 2001. On that day, three
(3) commercial aircrafts were hijacked, flown and smashed into the twin towers of the
World Trade Center in New York City and the Pentagon building in Washington,
D.C. by terrorists with alleged links to the al-Qaeda ("the Base"), a Muslim extremist
organization headed by the infamous Osama bin Laden. Of no comparable historical
parallels, these acts caused billions of dollars worth of destruction of property and
incalculable loss of hundreds of lives.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this
petition for certiorari and prohibition, attacking the constitutionality of the joint
exercise.2 They were joined subsequently by SANLAKAS and PARTIDO NG
MANGGAGAWA, both party-Iist organizations, who filed a petition-in-intervention
on February 11, 2002.

Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers.
SANLAKAS and PARTIDO, on the other hand, aver that certain members of their
organization are residents of Zamboanga and Sulu, and hence will be directly affected
by the operations being conducted in Mindanao. They likewise pray for a relaxation
on the rules relative to locus standi citing the unprecedented importance of the issue
involved.

On February 71 2002 the Senate conducted a hearing on the "Balikatan" exercise

wherein Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of
Foreign. Affairs, presented the Draft Terms of Reference (TOR).3Five days later, he
approved the TOR, which we quote hereunder:
I. POLICY LEVEL

1. The Exercise shall be consistent with the Philippine Constitution and all its
activities shall be in consonance with the laws of the land and the provisions of
the RP-US Visiting Forces Agreement (VFA).

2. The conduct of this training Exercise is in accordance with pertinent United

Nations resolutions against global terrorism as understood by the respective
parties.

3. No permanent US basing and support facilities shall be established.

Temporary structures such as those for troop billeting, classroom instruction
and messing may be set up for use by RP and US Forces during the Exercise.

4. The Exercise shall be implemented jointly by RP and US Exercise Co-

Directors under the authority of the Chief of Staff, AFP. In no instance will US
Forces operate independently during field training exercises (FTX). AFP and
US Unit Commanders will retain command over their respective forces under
the overall authority of the Exercise Co-Directors. RP and US participants shall
comply with operational instructions of the AFP during the FTX.

5. The exercise shall be conducted and completed within a period of not more
than six months, with the projected participation of 660 US personnel and
3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-
Directors to wind up and terminate the Exercise and other activities within the
six month Exercise period.

6. The Exercise is a mutual counter-terrorism advising, assisting and training

Exercise relative to Philippine efforts against the ASG, and will be conducted
on the Island of Basilan. Further advising, assisting and training exercises shall
be conducted in Malagutay and the Zamboanga area. Related activities in Cebu
will be for support of the Exercise.

7. Only 160 US Forces organized in 12-man Special Forces Teams shall be

deployed with AFP field, commanders. The US teams shall remain at the
Battalion Headquarters and, when approved, Company Tactical headquarters
where they can observe and assess the performance of the AFP Forces.

8. US exercise participants shall not engage in combat, without prejudice to

their right of self-defense.
9. These terms of Reference are for purposes of this Exercise only and do not
create additional legal obligations between the US Government and the
Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting,

advising and training of RP and US Forces with the primary objective of
enhancing the operational capabilities of both forces to combat
terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the
local air traffic regulations.

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at

the start of the Exercise. This briefing shall acquaint US Forces on the
culture and sensitivities of the Filipinos and the provisions of the VF A.
The briefing shall also promote the full cooperation on the part of the
RP and US participants for the successful conduct of the Exercise.

b. RP and US participating forces may share, in accordance with their

respective laws and regulations, in the use of their resources, equipment
and other assets. They will use their respective logistics channels.

c. Medical evaluation shall be jointly planned and executed utilizing RP

and US assets and resources.

d. Legal liaison officers from each respective party shall be appointed by

the Exercise Directors.

3. PUBLIC AFFAIRS

a. Combined RP-US Information Bureaus shall be established at the

Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp
Aguinaldo, Quezon City.
 b. Local media relations will be the concern of the AFP and all public
affairs guidelines shall be jointly developed by RP and US Forces.

c. Socio-Economic Assistance Projects shall be planned and executed

jointly by RP and US Forces in accordance with their respective laws and
regulations, and in consultation with community and local government
officials.

Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon

and United States Charge d' Affaires Robert Fitts signed the Agreed Minutes of the
discussion between the Vice-President and Assistant Secretary Kelly.4

Petitioners Lim and Ersando present the following arguments:

THE PHILIPPINES AND THE UNITED STATES SIGNED THE

MUTUAL DEFENSE TREATY (MDT) in 1951 TO PROVIDE MUTUAL
MILITARY ASSIST ANCE IN ACCORDANCE WITH THE
'CONSTITUTIONAL PROCESSE-S' OF EACH COUNTRY ONLY IN
THE CASE OF AN ARMED ATTACK BY AN EXTERNAL
AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF
THEM.

BY NO STRETCH OF THE IMAGINA TION CAN IT BE SAID THAT

THE ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN
EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES
TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY
ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN

SOLDIERS TO ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE
TERRITORY, NOT EVEN TO FIRE BACK "IF FIRED UPON".

Substantially the same points are advanced by petitioners SANLAKAS and

PARTIDO.

In his Comment, the Solicitor General points to infirmities in the petitions

regarding, inter alia, Lim and Ersando's standing to file suit, the prematurity of the
action, as well as the impropriety of availing of certiorari to ascertain a question of fact.
Anent their locus standi, the Solicitor General argues that first, they may not file suit in
their capacities as, taxpayers inasmuch as it has not been shown that "Balikatan 02-1 "
involves the exercise of Congress' taxing or spending powers. Second, their being
lawyers does not invest them with sufficient personality to initiate the case, citing our
ruling in Integrated Bar of the Philippines v. Zamora.5 Third, Lim and Ersando
have failed to demonstrate the requisite showing of direct personal injury. We agree.

It is also contended that the petitioners are indulging in speculation. The Solicitor
General is of the view that since the Terms of Reference are clear as to the extent and
duration of "Balikatan 02-1," the issues raised by petitioners are premature, as they are
based only on a fear of future violation of the Terms of Reference. Even petitioners'
resort to a special civil action for certiorari is assailed on the ground that the writ may
only issue on the basis of established facts.

Apart from these threshold issues, the Solicitor General claims that there is actually
no question of constitutionality involved. The true object of the instant suit, it is said,
is to obtain an interpretation of the V FA. The Solicitor General asks that we accord
due deference to the executive determination that "Balikatan 02-1" is covered by the
VFA, considering the President's monopoly in the field of foreign relations and her
role as commander-in-chief of the Philippine armed forces.

Given the primordial importance of the issue involved, it will suffice to reiterate our
view on this point in a related case:

Notwithstanding, in view of the paramount importance and the

constitutional significance of the issues raised in the petitions, this Court,
in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in
the early Emergency Powers Cases, where we had occasion to rule:

'x x x ordinary citizens and taxpayers were allowed to question the

constitutionality of several executive orders issued by President Quirino
although they were involving only an indirect and general interest shared
in common with the public. The Court dismissed the objection that they
were not proper parties and ruled that 'transcendental importance to
the public of these cases demands that they be settled promptly
and definitely, brushing aside, if we must, technicalities of
procedure.' We have since then applied the exception in many other
cases. [citation omitted]
 This principle was reiterated in the subsequent cases of Gonzales vs.
COMELEC, Daza vs. Singson, and Basco vs. Phil, Amusement and
Gaming Corporation, where we emphatically held:

Considering however the importance to the public of the case at bar, and
in keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of the government have
kept themselves within the limits of the Constitution and the laws that
they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of
this petition. xxx'

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court
ruled that in cases of transcendental importance, the Court may relax the
standing requirements and allow a suit to prosper even where there is no
direct injury to the party claiming the right of judicial review.

Although courts generally avoid having to decide a constitutional question

based on the doctrine of separation of powers, which enjoins upon the
department of the government a becoming respect for each other's act, this
Court nevertheless resolves to take cognizance of the instant petition.6

Hence, we treat with similar dispatch the general objection to the supposed
prematurity of the action. At any rate, petitioners' concerns on the lack of any specific
regulation on the latitude of activity US personnel may undertake and the duration of
their stay has been addressed in the Terms of Reference.

The holding of "Balikatan 02-1" must be studied in the framework of the treaty
antecedents to which the Philippines bound itself. The first of these is the Mutual
Defense Treaty (MDT, for brevity). The MDT has been described as the "core" of the
defense relationship between the Philippines and its traditional ally, the United States.
Its aim is to enhance the strategic and technological capabilities of our armed forces
through joint training with its American counterparts; the "Balikatan" is the largest
such training exercise directly supporting the MDT's objectives. It is this treaty to
which the V FA adverts and the obligations thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to
renew it created a vacuum in US-Philippine defense relations, that is, until it was
replaced by the Visiting Forces Agreement. It should be recalled that on October 10,
2000, by a vote of eleven to three, this Court upheld the validity of the VFA.7 The V
FA provides the "regulatory mechanism" by which "United States military and civilian
personnel [may visit] temporarily in the Philippines in connection with activities
approved by the Philippine Government." It contains provisions relative to entry and
departure of American personnel, driving and vehicle registration, criminal
jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as
well as the duration of the agreement and its termination. It is the VFA which gives
continued relevance to the MDT despite the passage of years. Its primary goal is to
facilitate the promotion of optimal cooperation between American and Philippine
military forces in the event of an attack by a common foe.

The first question that should be addressed is whether "Balikatan 02-1" is covered by
the Visiting Forces Agreement. To resolve this, it is necessary to refer to the V FA
itself: Not much help can be had therefrom, unfortunately, since the terminology
employed is itself the source of the problem. The VFA permits United States
personnel to engage, on an impermanent basis, in "activities," the exact meaning of
which was left undefined. The expression is ambiguous, permitting a wide scope of
undertakings subject only to the approval of the Philippine government.8 The sole
encumbrance placed on its definition is couched in the negative, in that United States
personnel must "abstain from any activity inconsistent with the spirit of this agreement, and
in particular, from any political activity."9 All other activities, in other words, are fair game.

We are not left completely unaided, however. The Vienna Convention on the Law of
Treaties, which contains provisos governing interpretations of international
agreements, state:

SECTION 3. INTERPRETATION OF TREATIES

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith ill accordance with the ordinary
meaning to be given to the tenus of the treaty in their context and in the light
of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise,
in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the
parties in connexion with the conclusion of the treaty;
 (b) any instrument which was made by one or more parties in connexion
with the conclusion of the treaty and accepted by the other parties as an
instrument related to the party .

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the

interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which

establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations

between the parties.

4. A special meaning shall be given to a term if it is established that the parties

so intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the

preparatory work of the treaty and the circumstances of its conclusion, in order
to confirm the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to article 31 :

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize the parties' intentions. The
Convention likewise dictates what may be used as aids to deduce the meaning of
terms, which it refers to as the context of the treaty, as well as other elements may be
taken into account alongside the aforesaid context. As explained by a writer on the
Convention ,

[t]he Commission's proposals (which were adopted virtually without change by

the conference and are now reflected in Articles 31 and 32 of the Convention)
were clearly based on the view that the text of a treaty must be presumed to be
the authentic expression of the intentions of the parties; the Commission
 accordingly came down firmly in favour of the view that 'the starting point of
interpretation is the elucidation of the meaning of the text, not an
investigation ab initio into the intentions of the parties'. This is not to say that
the travauxpreparatoires of a treaty , or the circumstances of its conclusion, are
relegated to a subordinate, and wholly ineffective, role. As Professor Briggs
points out, no rigid temporal prohibition on resort to travaux preparatoires of a
treaty was intended by the use of the phrase 'supplementary means of
interpretation' in what is now Article 32 of the Vienna Convention. The
distinction between the general rule of interpretation and the supplementary
means of interpretation is intended rather to ensure that the supplementary
means do not constitute an alternative, autonomous method of interpretation
divorced from the general rule.10

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the
meaning of the word .'activities" arose from accident. In our view, it was deliberately
made that way to give both parties a certain leeway in negotiation. In this manner,
visiting US forces may sojourn in Philippine territory for purposes other than military.
As conceived, the joint exercises may include training on new techniques of patrol and
surveillance to protect the nation's marine resources, sea search-and-rescue operations
to assist vessels in distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is
only logical to assume that .'Balikatan 02-1," a "mutual anti- terrorism advising,
assisting and training exercise," falls under the umbrella of sanctioned or allowable
activities in the context of the agreement. Both the history and intent of the Mutual
Defense Treaty and the V FA support the conclusion that combat-related activities -as
opposed to combat itself -such as the one subject of the instant petition, are indeed
authorized.

That is not the end of the matter, though. Granted that "Balikatan 02-1" is permitted
under the terms of the VFA, what may US forces legitimately do in furtherance of
their aim to provide advice, assistance and training in the global effort against
terrorism? Differently phrased, may American troops actually engage in combat in
Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of
section I stipulates that US exercise participants may not engage in combat "except
in self-defense." We wryly note that this sentiment is admirable in the abstract but
difficult in implementation. The target of "Balikatan 02-1 I" the Abu Sayyaf, cannot
reasonably be expected to sit idly while the battle is brought to their very doorstep.
They cannot be expected to pick and choose their targets for they will not have the
luxury of doing so. We state this point if only to signify our awareness that the parties
straddle a fine line, observing the honored legal maxim "Nemo potest facere per alium quod
non potest facere per directum."11 The indirect violation is actually petitioners' worry, that in
reality, "Balikatan 02-1 " is actually a war principally conducted by the United States
government, and that the provision on self-defense serves only as camouflage to
conceal the true nature of the exercise. A clear pronouncement on this matter thereby
becomes crucial.

In our considered opinion, neither the MDT nor the V FA allow foreign troops to
engage in an offensive war on Philippine territory. We bear in mind the salutary
proscription stated in the Charter of the United Nations, to wit:

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article
1, shall act in accordance with the following Principles.

xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations.

xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces
Agreement, as in all other treaties and international agreements to which the
Philippines is a party, must be read in the context of the 1987 Constitution. In
particular, the Mutual Defense Treaty was concluded way before the present Charter,
though it nevertheless remains in effect as a valid source of international obligation.
The present Constitution contains key provisions useful in determining the extent to
which foreign military troops are allowed in Philippine territory. Thus, in the
Declaration of Principles and State Policies, it is provided that:

xxx xxx xxx xxx

SEC. 2. The Philippines renounces war as an instrument of national policy,

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

SEC. 7. The State shall pursue an independent foreign policy. In its relations
with other states the paramount consideration shall be national sovereignty,
territorial integrity, national interest, and the right to self- determination.

SEC. 8. The Philippines, consistent with the national interest, adopts and
pursues a policy of freedom from nuclear weapons in the country.

xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive
when it provides that "[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of the
Senate."12 Even more pointedly, the Transitory Provisions state:

Sec. 25. After the expiration in 1991 of the Agreement between the Republic of
the Philippines and the United States of America concerning Military Bases,
foreign military bases, troops or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other
contracting state.

The aforequoted provisions betray a marked antipathy towards foreign military

presence in the country, or of foreign influence in general. Hence, foreign troops are
allowed entry into the Philippines only by way of direct exception. Conflict arises then
between the fundamental law and our obligations arising from international
agreements.

A rather recent formulation of the relation of international law vis-a-vis municipal law
was expressed in Philip Morris, Inc. v. Court of Appeals,13 to wit:

xxx Withal, the fact that international law has been made part of the law of the
land does not by any means imply the primacy of international law over
national law in the municipal sphere. Under the doctrine of incorporation as
applied in most countries, rules of international law are given a standing equal,
not superior, to national legislation.

This is not exactly helpful in solving the problem at hand since in trying to find a
middle ground, it favors neither one law nor the other, which only leaves the hapless
seeker with an unsolved dilemma. Other more traditional approaches may offer
valuable insights.

From the perspective of public international law, a treaty is favored over municipal
law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is
binding upon the parties to it and must be performed by them in good
faith."14 Further, a party to a treaty is not allowed to "invoke the provisions of its
internal law as justification for its failure to perform a treaty."15

Our Constitution espouses the opposing view. Witness our jurisdiction as I stated in
section 5 of Article VIII:

The Supreme Court shall have the following powers:

xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and order of lower courts in:

(A) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.

xxx xxx xxx xxx

In Ichong v. Hernandez,16 we ruled that the provisions of a treaty are always subject
to qualification or amendment by a subsequent law, or that it is subject to the police
power of the State. In Gonzales v. Hechanova,17

xxx As regards the question whether an international agreement may be

invalidated by our courts, suffice it to say that the Constitution of the
Philippines has clearly settled it in the affirmative, by providing, in Section 2 of
Article VIII thereof, that the Supreme Court may not be deprived "of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or
writ of error as the law or the rules of court may provide, final judgments and
decrees of inferior courts in -( I) All cases in which
the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question." In other words, our Constitution authorizes the
nullification of a treaty, not only when it conflicts with the fundamental
law, but, also, when it runs counter to an act of Congress.
The foregoing premises leave us no doubt that US forces are prohibited / from
engaging in an offensive war on Philippine territory.

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

It is all too apparent that the determination thereof involves basically a question of
fact. On this point, we must concur with the Solicitor General that the present subject
matter is not a fit topic for a special civil action for certiorari. We have held in too
many instances that questions of fact are not entertained in such a remedy. The sole
object of the writ is to correct errors of jurisdiction or grave abuse of discretion: The
phrase "grave abuse of discretion" has a precise meaning in law, denoting abuse of
discretion "too patent and gross as to amount to an evasion of a positive duty, or a
virtual refusal to perform the duty enjoined or act in contemplation of law, or where
the power is exercised in an arbitrary and despotic manner by reason of passion and
personal hostility."19

In this connection, it will not be amiss to add that the Supreme Court is not a trier of
facts.20

Under the expanded concept of judicial power under the Constitution, courts are
charged with the duty "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government."21 From the facts obtaining, we find that the
holding of "Balikatan 02-1" joint military exercise has not intruded into that
penumbra of error that would otherwise call for correction on our part. In other
words, respondents in the case at bar have not committed grave abuse of discretion
amounting to lack or excess of jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are
hereby DISMISSED without prejudice to the filing of a new petition sufficient in
form and substance in the proper Regional Trial Court.

SO ORDERED.
 EN BANC

SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088

REP. ETTA ROSALES, PHILIPPINE
COALITION FOR THE ESTABLISHMENT
OF THE INTERNATIONAL Present:
CRIMINAL COURT, TASK FORCE
DETAINEES OF THE PHILIPPINES, Davide, Jr., C.J.,
FAMILIES OF VICTIMS OF Puno,
INVOLUNTARY DISAPPEARANCES, Panganiban,
BIANCA HACINTHA R. ROQUE, Quisumbing,
HARRISON JACOB R. ROQUE, Ynares-Santiago,
AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,
LEAVIDES G. DOMINGO, EDGARDO *Carpio,
CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez,
CELESTE CEMBRANO, LIZA ABIERA, *Corona,
JAIME ARROYO, MARWIL LLASOS, Carpio Morales,
CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,
FAGELA, and ROMEL BAGARES, Azcuna,
Petitioners, Tinga,
Chico-Nazario, and
- versus - Garcia, JJ.

OFFICE OF THE EXECUTIVE

SECRETARY, represented by Promulgated:
HON. ALBERTO ROMULO, and the
DEPARTMENT OF FOREIGN
AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PUNO J.:

This is a petition for mandamus filed by petitioners to compel the

Office of the Executive Secretary and the Department of Foreign Affairs to transmit
the signed copy of the Rome Statute of the International Criminal Court to the Senate
of the Philippines for its concurrence in accordance with Section 21, Article VII of
the 1987 Constitution.
The Rome Statute established the International Criminal Court which shall have the
power to exercise its jurisdiction over persons for the most serious crimes of
international concern xxx and shall be complementary to the national criminal
jurisdictions.[1] Its jurisdiction covers the crime of genocide, crimes against humanity,
war crimes and the crime of aggression as defined in the Statute.[2] The Statute was
opened for signature by all states in Rome on July 17, 1998 and had remained open
for signature until December 31, 2000 at the United Nations Headquarters in New
York. The Philippines signed the Statute on December 28, 2000 through Charge d
Affairs Enrique A. Manalo of the Philippine Mission to the United Nations. [3] Its
provisions, however, require that it be subject to ratification, acceptance or approval
of the signatory states.[4]
Petitioners filed the instant petition to compel the respondents the Office of the
Executive Secretary and the Department of Foreign Affairs to transmit the signed text
of the treaty to the Senate of the Philippines for ratification.
It is the theory of the petitioners that ratification of a treaty, under both domestic law
and international law, is a function of the Senate. Hence, it is the duty of the executive
department to transmit the signed copy of the Rome Statute to the Senate to allow it
to exercise its discretion with respect to ratification of treaties. Moreover, petitioners
submit that the Philippines has a ministerial duty to ratify the Rome Statute under
treaty law and customary international law. Petitioners invoke the Vienna Convention
on the Law of Treaties enjoining the states to refrain from acts which would defeat
the object and purpose of a treaty when they have signed the treaty prior to
ratification unless they have made their intention clear not to become parties to the
treaty.[5]
The Office of the Solicitor General, commenting for the respondents, questioned the
standing of the petitioners to file the instant suit. It also contended that the petition at
bar violates the rule on hierarchy of courts. On the substantive issue raised by
petitioners, respondents argue that the executive department has no duty to transmit
the Rome Statute to the Senate for concurrence.
A petition for mandamus may be filed when any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station. [6] We have held that to be
given due course, a petition for mandamus must have been instituted by a party
aggrieved by the alleged inaction of any tribunal, corporation, board or person which
unlawfully excludes said party from the enjoyment of a legal right. The petitioner in
every case must therefore be an aggrieved party in the sense that he possesses a clear
legal right to be enforced and a direct interest in the duty or act to be
performed.[7] The Court will exercise its power of judicial review only if the case is
brought before it by a party who has the legal standing to raise the constitutional or
legal question. Legal standing means a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the
government act that is being challenged. The term interest is material interest, an
interest in issue and to be affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest.[8]
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal
standing to file the suit as member of the Senate; Congresswoman Loretta Ann
Rosales, a member of the House of Representatives and Chairperson of its
Committee on Human Rights; the Philippine Coalition for the Establishment of the
International Criminal Court which is composed of individuals and corporate entities
dedicated to the Philippine ratification of the Rome Statute; the Task Force Detainees
of the Philippines, a juridical entity with the avowed purpose of promoting the cause
of human rights and human rights victims in the country; the Families of Victims of
Involuntary Disappearances, a juridical entity duly organized and existing pursuant to
Philippine Laws with the avowed purpose of promoting the cause of families and
victims of human rights violations in the country; Bianca Hacintha Roque and
Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time of filing of
the instant petition, and suing under the doctrine of inter-generational rights
enunciated in the case of Oposa vs. Factoran, Jr.;[9] and a group of fifth year
working law students from the University of the Philippines College of Law who are
suing as taxpayers.
The question in standing is whether a party has alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.[10]
We find that among the petitioners, only Senator Pimentel has the legal standing to
file the instant suit. The other petitioners maintain their standing as advocates and
defenders of human rights, and as citizens of the country. They have not shown,
however, that they have sustained or will sustain a direct injury from the non-
transmittal of the signed text of the Rome Statute to the Senate. Their contention that
they will be deprived of their remedies for the protection and enforcement of their
rights does not persuade. The Rome Statute is intended to complement national
criminal laws and courts. Sufficient remedies are available under our national laws to
protect our citizens against human rights violations and petitioners can always seek
redress for any abuse in our domestic courts.
As regards Senator Pimentel, it has been held that to the extent the powers of
Congress are impaired, so is the power of each member thereof, since his office
confers a right to participate in the exercise of the powers of that institution. [11] Thus,
legislators have the standing to maintain inviolate the prerogatives, powers and
privileges vested by the Constitution in their office and are allowed to sue to question
the validity of any official action which they claim infringes their prerogatives as
legislators. The petition at bar invokes the power of the Senate to grant or withhold
its concurrence to a treaty entered into by the executive branch, in this case, the Rome
Statute. The petition seeks to order the executive branch to transmit the copy of the
treaty to the Senate to allow it to exercise such authority. Senator Pimentel, as
member of the institution, certainly has the legal standing to assert such authority of
the Senate.
We now go to the substantive issue.
The core issue in this petition for mandamus is whether the Executive Secretary and
the Department of Foreign Affairs have a ministerial duty to transmit to the Senate
the copy of the Rome Statute signed by a member of the Philippine Mission to the
United Nations even without the signature of the President.
We rule in the negative.
In our system of government, the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the countrys sole representative
with foreign nations.[12] As the chief architect of foreign policy, the President acts as
the countrys mouthpiece with respect to international affairs. Hence, the President is
vested with the authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise
transact the business of foreign relations.[13] In the realm of treaty-making, the
President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter
into treaties, the Constitution provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the validity of the treaty
entered into by him. Section 21, Article VII of the 1987 Constitution provides that no
treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate. The 1935 and the 1973 Constitution
also required the concurrence by the legislature to the treaties entered into by the
executive. Section 10 (7), Article VII of the 1935 Constitution provided:
 Sec. 10. (7) The President shall have the power, with the concurrence of
two-thirds of all the Members of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty
shall be valid and effective unless concurred in by a majority of all the
Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed
essential to provide a check on the executive in the field of foreign relations. [14] By
requiring the concurrence of the legislature in the treaties entered into by the
President, the Constitution ensures a healthy system of checks and balance necessary
in the nations pursuit of political maturity and growth.[15]
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987
Constitution to mean that the power to ratify treaties belongs to the Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law, describes the treaty-making
process in this wise:
The usual steps in the treaty-making process are: negotiation,
signature, ratification, and exchange of the instruments of ratification.
The treaty may then be submitted for registration and publication under
the U.N. Charter, although this step is not essential to the validity of the
agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now

usually assigns this task to his authorized representatives. These
representatives are provided with credentials known as full powers,
which they exhibit to the other negotiators at the start of the formal
discussions. It is standard practice for one of the parties to submit a
draft of the proposed treaty which, together with the counter-proposals,
becomes the basis of the subsequent negotiations. The negotiations may
be brief or protracted, depending on the issues involved, and may even
collapse in case the parties are unable to come to an agreement on the
points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the
same is opened for signature. This step is primarily intended as a means of
authenticating the instrument and for the purpose of symbolizing the
 good faith of the parties; but, significantly, it does not indicate the
final consent of the state in cases where ratification of the treaty is
required. The document is ordinarily signed in accordance with
the alternat, that is, each of the several negotiators is allowed to sign first
on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state
confirms and accepts the provisions of a treaty concluded by its
representatives. The purpose of ratification is to enable the
contracting states to examine the treaty more closely and to give
them an opportunity to refuse to be bound by it should they find it
inimical to their interests. It is for this reason that most treaties are
made subject to the scrutiny and consent of a department of the
government other than that which negotiated them.

xxx

The last step in the treaty-making process is the exchange of the

instruments of ratification, which usually also signifies the effectivity of the
treaty unless a different date has been agreed upon by the parties. Where
ratification is dispensed with and no effectivity clause is embodied in the
treaty, the instrument is deemed effective upon its signature.[16] [emphasis
supplied]

Petitioners arguments equate the signing of the treaty by the Philippine

representative with ratification. It should be underscored that the signing of the treaty
and the ratification are two separate and distinct steps in the treaty-making process.
As earlier discussed, the signature is primarily intended as a means of authenticating
the instrument and as a symbol of the good faith of the parties. It is usually performed
by the states authorized representative in the diplomatic mission. Ratification, on the
other hand, is the formal act by which a state confirms and accepts the provisions of a
treaty concluded by its representative. It is generally held to be an executive act,
undertaken by the head of the state or of the government. [17] Thus, Executive Order
No. 459 issued by President Fidel V. Ramos on November 25, 1997 provides the
guidelines in the negotiation of international agreements and its ratification. It
mandates that after the treaty has been signed by the Philippine representative, the
same shall be transmitted to the Department of Foreign Affairs. The Department of
Foreign Affairs shall then prepare the ratification papers and forward the signed copy
of the treaty to the President for ratification. After the President has ratified the treaty,
the Department of Foreign Affairs shall submit the same to the Senate for
concurrence. Upon receipt of the concurrence of the Senate, the Department of
Foreign Affairs shall comply with the provisions of the treaty to render it effective.
Section 7 of Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a
Treaty or an Executive Agreement. The domestic requirements for
the entry into force of a treaty or an executive agreement, or any
amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to

the Department of Foreign Affairs after their signing
for the preparation of the ratification papers. The
transmittal shall include the highlights of the
agreements and the benefits which will accrue to the
Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to

the endorsement by the concerned agency, shall
transmit the agreements to the President of the
Philippines for his ratification. The original signed
instrument of ratification shall then be returned to
the Department of Foreign Affairs for appropriate
action.

B. Treaties.

i. All treaties, regardless of their designation, shall

comply with the requirements provided in sub-
paragraph[s] 1 and 2, item A (Executive Agreements)
of this Section. In addition, the Department of
Foreign Affairs shall submit the treaties to the Senate
of the Philippines for concurrence in the ratification
by the President. A certified true copy of the treaties,
in such numbers as may be required by the Senate,
together with a certified true copy of the ratification
instrument, shall accompany the submission of the
treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate,

the Department of Foreign Affairs shall comply with
 the provision of the treaties in effecting their entry
into force.

Petitioners submission that the Philippines is bound under treaty law and international
law to ratify the treaty which it has signed is without basis. The signature does not
signify the final consent of the state to the treaty. It is the ratification that binds the
state to the provisions thereof. In fact, the Rome Statute itself requires that the
signature of the representatives of the states be subject to ratification, acceptance or
approval of the signatory states. Ratification is the act by which the provisions of a
treaty are formally confirmed and approved by a State. By ratifying a treaty signed in
its behalf, a state expresses its willingness to be bound by the provisions of such
treaty. After the treaty is signed by the states representative, the President, being
accountable to the people, is burdened with the responsibility and the duty to carefully
study the contents of the treaty and ensure that they are not inimical to the interest of
the state and its people. Thus, the President has the discretion even after the signing
of the treaty by the Philippine representative whether or not to ratify the same. The
Vienna Convention on the Law of Treaties does not contemplate to defeat or even
restrain this power of the head of states. If that were so, the requirement of
ratification of treaties would be pointless and futile. It has been held that a state has
no legal or even moral duty to ratify a treaty which has been signed by its
plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but it goes without
saying that the refusal must be based on substantial grounds and not on superficial or
whimsical reasons. Otherwise, the other state would be justified in taking offense.[19]
It should be emphasized that under our Constitution, the power to ratify is vested in
the President, subject to the concurrence of the Senate. The role of the Senate,
however, is limited only to giving or withholding its consent, or concurrence, to the
ratification.[20] Hence, it is within the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent for its ratification, refuse to ratify
it.[21] Although the refusal of a state to ratify a treaty which has been signed in its
behalf is a serious step that should not be taken lightly,[22] such decision is within the
competence of the President alone, which cannot be encroached by this Court via a
writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the
President in the performance of his official duties.[23] The Court, therefore, cannot
issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction
to compel the executive branch of the government to transmit the signed text of
Rome Statute to the Senate.
IN VIEW WHEREOF, the petition is DISMISSED.
SO ORDERED.
 EN BANC

SPOUSES RENATO G.R. No. 106064

CONSTANTINO, JR. and
LOURDES CONSTANTINO Present:
and their minor children
RENATO REDENTOR, DAVIDE, JR., CJ.,
ANNA MARIKA LISSA, PUNO,
NINA ELISSA, and PANGANIBAN,
ANNA KARMINA, QUISUMBING,
FREEDOM FROM DEBT YNARES-SANTIAGO,
COALITION, and FILOMENO SANDOVAL-GUTIERREZ,
STA. ANA III, CARPIO,
Petitioners , AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
CALLEJO, SR.,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.
HON. JOSE B. CUISIA,
in his capacity as Governor
of the Central Bank,
HON. RAMON DEL ROSARIO,
in his capacity as Secretary
of Finance, HON. EMMANUEL V.
PELAEZ, in his capacity as
Philippine Debt Negotiating
Chairman, and the NATIONAL Promulgated:
TREASURER,
Respondents. October 13, 2005
x-------------------------------------------------------------------x
DECISION

TINGA, J.:

The quagmire that is the foreign debt problem has especially confounded
developing nations around the world for decades. It has defied easy solutions
acceptable both to debtor countries and their creditors. It has also emerged as cause
celebre for various political movements and grassroots activists and the wellspring of
much scholarly thought and debate.

The present petition illustrates some of the ideological and functional

differences between experts on how to achieve debt relief. However, this being a
court of law, not an academic forum or a convention on development economics, our
resolution has to hinge on the presented legal issues which center on the appreciation
of the constitutional provision that empowers the President to contract and guarantee
foreign loans. The ultimate choice is between a restrictive reading of the constitutional
provision and an alimentative application thereof consistent with time-honored
principles on executive power and the alter ego doctrine.

This Petition for Certiorari, Prohibition and Mandamus assails said contracts which
were entered into pursuant to the Philippine Comprehensive Financing Program for
1992 (Financing Program or Program). It seeks to enjoin respondents from executing
additional debt-relief contracts pursuant thereto. It also urges the Court to issue an
order compelling the Secretary of Justice to institute criminal and administrative cases
against respondents for acts which circumvent or negate the provisions Art. XII of
the Constitution.[1]

Parties and Facts

The petition was filed on 17 July 1992 by petitioners spouses Renato

Constantino, Jr. and Lourdes Constantino and their minor children, Renato Redentor,
Anna Marika Lissa, Nina Elissa, and Anna Karmina, Filomeno Sta. Ana III, and the
Freedom from Debt Coalition, a non-stock, non-profit, non-government organization
that advocates a pro-people and just Philippine debt policy.[2] Named respondents
were the then Governor of the Bangko Sentral ng Pilipinas, the Secretary of Finance,
the National Treasurer, and the Philippine Debt Negotiation Chairman Emmanuel V.
Pelaez.[3] All respondents were members of the Philippine panel tasked to negotiate
with the countrys foreign creditors pursuant to the Financing Program.

The operative facts are sparse and there is little need to elaborate on them.

The Financing Program was the culmination of efforts that began during the
term of former President Corazon Aquino to manage the countrys external debt
problem through a negotiation-oriented debt strategy involving cooperation and
negotiation with foreign creditors.[4] Pursuant to this strategy, the Aquino government
entered into three restructuring agreements with representatives of foreign creditor
governments during the period of 1986 to 1991.[5] During the same period, three
similarly-oriented restructuring agreements were executed with commercial bank
creditors.[6]

On 28 February 1992, the Philippine Debt Negotiating Team, chaired by

respondent Pelaez, negotiated an agreement with the countrys Bank Advisory
Committee, representing all foreign commercial bank creditors, on the Financing
Program which respondents characterized as a multi-option financing

package.[7] The Program was scheduled to be executed on 24 July 1992 by

respondents in behalf of the Republic. Nonetheless, petitioners alleged that even prior
to the execution of the Program respondents had already implemented its buyback
component when on 15 May 1992, the Philippines bought back P1.26 billion of
external debts pursuant to the Program.[8]

The petition sought to enjoin the ratification of the Program, but the Court did
not issue any injunctive relief. Hence, it came to pass that the Program was signed
in London as scheduled. The petition still has to be resolved though as petitioners
seek the annulment of
any and all acts done by respondents, their subordinates and any other public officer
pursuant to the agreement and program in question.[9] Even after the signing of the
Program, respondents themselves acknowledged that the remaining principal
objective of the petition is to set aside respondents actions.[10]

Petitioners characterize the Financing Program as a package offered to the

countrys foreign creditors consisting of two debt-relief options.[11] The first option
was a cash buyback of portions of the Philippine foreign debt at a discount. [12] The
second option allowed creditors to convert existing Philippine debt instruments into
any of three kinds of bonds/securities: (1) new money bonds with a five-year grace
period and 17 years final maturity, the purchase of which would allow the creditors to
convert their eligible debt papers into bearer bonds with the same terms; (2) interest-
reduction bonds with a maturity of 25 years; and (3) principal-collateralized interest-
reduction bonds with a maturity of 25 years.[13]

On the other hand, according to respondents the Financing Program would cover
about U.S. $5.3 billion of foreign commercial debts and it was expected to deal
comprehensively with the commercial bank debt problem of the country and pave the
way for the countrys access to capital markets.[14] They add that the Program carried
three basic options from which foreign bank lenders could choose, namely: to lend
money, to exchange existing restructured Philippine debts with an interest reduction
bond; or to exchange the same Philippine debts with a principal collateralized interest
reduction bond.[15]

Issues for Resolution

Petitioners raise several issues before this Court.

First, they object to the debt-relief contracts entered into pursuant to the
Financing Program as beyond the powers granted to the President under Section 20,
Article VII of the Constitution.[16] The provision states that the President may
contract or guarantee foreign loans in behalf of the Republic. It is claimed that the
buyback and securitization/bond conversion schemes are neither loans nor
guarantees, and hence beyond the power of the President to execute.

Second, according to petitioners even assuming that the contracts under the
Financing Program are constitutionally permissible, yet it is only the President who
may exercise the power to enter into these contracts and such power may not be
delegated to respondents.

Third, petitioners argue that the Financing Program violates several

constitutional policies and that contracts executed or to be executed pursuant thereto
were or will be done by respondents with grave abuse of discretion amounting to lack
or excess of jurisdiction.

Petitioners contend that the Financing Program was made available for debts
that were either fraudulently contracted or void. In this regard, petitioners rely on a
1992 Commission on Audit (COA) report which identified several behest loans as
either contracted or guaranteed fraudulently during the Marcos regime.[17] They posit
that since these and other similar debts, such as the ones pertaining to the Bataan
Nuclear Power Plant,[18] were eligible for buyback or conversion under the Program,
the resultant relief agreements pertaining thereto would be void for being waivers of
the Republics right to repudiate the void or fraudulently contracted loans.

For their part, respondents dispute the points raised by petitioners. They also question
the standing of petitioners to institute the present petition and the justiciability of the
issues presented.

The Court shall tackle the procedural questions ahead of the substantive issues.
 The Courts Rulings

Standing of Petitioners

The individual petitioners are suing as citizens of the Philippines; those among
them who are of age are suing in their additional capacity as taxpayers. [19] It is not
indicated in what capacity the Freedom from Debt Coalition is suing.

Respondents point out that petitioners have no standing to file the present suit
since the rule allowing taxpayers to assail executive or legislative acts has been applied
only to cases where the constitutionality of a statute is involved. At the same time,
however, they urge this Court to exercise its wide discretion and waive petitioners lack
of standing. They invoke the transcendental importance of resolving the validity of
the questioned debt-relief contracts and others of similar import.

The recent trend on locus standi has veered towards a liberal treatment in
taxpayers suits. In Tatad v. Garcia Jr.,[20] this Court reiterated that the prevailing
doctrines in taxpayers suits are to allow taxpayers to question contracts entered into
by the national government or government owned and controlled corporations
allegedly in contravention of law.[21] A taxpayeris allowed to sue where there is a claim
that public funds are illegally disbursed, or that public money is being deflected to
any improper purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.[22]

Moreover, a ruling on the issues of this case will not only determine the validity
or invalidity of the subject pre-termination and bond-conversion of foreign debts but
also create a precedent for other debts or debt-related contracts executed or to be
executed in behalf of the President of the Philippines by the Secretary of Finance.
Considering the reported Philippine debt of P3.80 trillion as of November 2004, the
foreign public borrowing component of which reached P1.81 trillion in November,
equivalent to 47.6% of total government borrowings,[23] the importance of the issues
raised and the magnitude of the public interest involved are indubitable.

Thus, the Courts cognizance of this petition is also based on the consideration
that the determination of the issues presented will have a bearing on the state of the
countrys economy, its international financial ratings, and perhaps even the Filipinos
way of life. Seen in this light, the transcendental importance of the issues herein
presented cannot be doubted.

Where constitutional issues are properly raised in the context of alleged facts,
procedural questions acquire a relatively minor significance.[24] We thus hold that by
the very nature of the power wielded by the President, the effect of using this power
on the economy, and the well-being in general of the Filipino nation, the Court must
set aside the procedural barrier of standing and rule on the justiciable issues presented
by the parties.

Ripeness/Actual Case Dimension

Even as respondents concede the transcendental importance of the issues at

bar, in their Rejoinder they ask this Court to dismiss the Petition. Allegedly, petitioners
arguments are mere attempts at abstraction.[25] Respondents are correct to some
degree. Several issues, as shall be discussed in due course, are not ripe for
adjudication.

The allegation that respondents waived the Philippines right to repudiate void
and fraudulently contracted loans by executing the debt-relief agreements is, on many
levels, not justiciable.

In the first place, records do not show whether the so-called behest loansor
other allegedly void or fraudulently contracted loans for that matterwere subject of
the debt-relief contracts entered into under the Financing Program.

Moreover, asserting a right to repudiate void or fraudulently contracted loans

begs the question of whether indeed particular loans are void or fraudulently
contracted. Fraudulently contracted loans are voidable and, as such, valid and
enforceable until annulled by the courts. On the other hand, void contracts that have
already been fulfilled must be declared void in view of the maxim that no one is
allowed to take the law in his own hands.[26] Petitioners theory depends on a prior
annulment or declaration of nullity of the pre-existing loans, which thus far have not
been submitted to this Court. Additionally, void contracts are unratifiable by their
very nature; they are null and void ab initio. Consequently, from the viewpoint of civil
law, what petitioners present as the Republics right to repudiate is yet a contingent
right, one which cannot be allowed as an anticipatory basis for annulling the debt-
relief contracts. Petitioners contention that the debt-relief agreements are tantamount
to waivers of the Republics right to repudiate so-called behest loans is without legal
foundation.

It may not be amiss to recognize that there are many advocates of the position
that the Republic should renege on obligations that are considered as illegitimate.
However, should the executive branch unilaterally, and possibly even without prior
court determination of the validity or invalidity of these contracts, repudiate or
otherwise declare to the international community its resolve not to recognize a certain
set of illegitimate loans, adverse repercussions[27] would come into play. Dr. Felipe
Medalla, former Director General of the National Economic Development Authority,
has warned, thus:

One way to reduce debt service is to repudiate debts, totally or

selectively. Taken to its limit, however, such a strategy would put
the Philippines at such odds with too many enemies. Foreign
commercial banks by themselves and without the cooperation of
creditor governments, especially the United States, may not be in a
position to inflict much damage, but concerted sanctions from
commercial banks, multilateral financial institutions and creditor
governments would affect not only our sources of credit but also our
access to markets for our exports and the level of development
assistance. . . . [T]he country might face concerted sanctions even if
debts were repudiated only selectively.

The point that must be stressed is that repudiation is not an

attractive alternative if net payments to creditors in the short and
medium-run can be reduced through an agreement (as opposed to a
unilaterally set ceiling on debt service payments) which provides for both
rescheduling of principal and capitalization of interest, or its equivalent
in new loans, which would make it easier for the country to pay
interest.[28]

Sovereign default is not new to the Philippine setting. In October 1983, the
Philippines declared a moratorium on principal payments on its external debts that
eventually

lasted four years,[29] that virtually closed the countrys access to new foreign
money[30] and drove investors to leave the Philippine market, resulting in some
devastating consequences.[31]It would appear then that this beguilingly attractive and
dangerously simplistic solution deserves the utmost circumspect cogitation before it is
resorted to.

In any event, the discretion on the matter lies not with the courts but with the
executive. Thus, the Program was conceptualized as an offshoot of the decision made
by then
President Aquino that the Philippines should recognize its sovereign debts [32] despite
the controversy that engulfed many debts incurred during the Marcos era. It is a
scheme whereby the Philippines restructured its debts following a negotiated
approach instead of a default approach to manage the bleak Philippine debt situation.

As a final point, petitioners have no real basis to fret over a possible waiver of
the right to repudiate void contracts. Even assuming that spurious loans had become
the subject of debt-relief contracts, respondents unequivocally assert that the Republic
did not waive any right to repudiate void or fraudulently contracted loans, it having
incorporated a no-waiver clause in the agreements.[33]

Substantive Issues

It is helpful to put the matter in perspective before moving on to the merits. The
Financing Program extinguished portions of the countrys pre-existing loans

through either debt buyback or bond-conversion. The buyback approach essentially

pre-terminated portions of public debts while the bond-conversion scheme
extinguished public debts through the obtention of a new loan by virtue of a
sovereign bond issuance, the proceeds of which in turn were used for terminating the
original loan.

First Issue: The Scope of Section 20, Article VII

For their first constitutional argument, petitioners submit that the buyback and
bond-conversion schemes do not constitute the loan contract or guarantee
contemplated in the Constitution and are consequently prohibited. Sec. 20, Art. VII of
the Constitution provides, viz:

The President may contract or guarantee foreign loans in behalf

of the Republic of the Philippines with the prior concurrence of the
Monetary Board and subject to such limitations as may be provided
under law. The Monetary Board shall, within thirty days from the end of
every quarter of the calendar year, submit to the Congress a complete
report of its decisions on applications for loans to be contracted or
guaranteed by the government or government-owned and controlled
corporations which would have the effect of increasing the foreign debt,
and containing other matters as may be provided by law.
 On Bond-conversion

Loans are transactions wherein the owner of a property allows another party to
use the property and where customarily, the latter promises to return the property
after a specified period with payment for its use, called interest.[34] On the other hand,
bonds are interest-bearing or discounted government or corporate securities that
obligate the issuer to pay the bondholder a specified sum of money, usually at specific
intervals, and to repay the principal amount of the loan at maturity. [35] The word bond
means contract, agreement, or guarantee. All of these terms are applicable to the
securities known as bonds. An investor who purchases a bond is lending money to
the issuer, and the bond represents the issuers contractual promise to pay interest and
repay principal according to specific terms. A short-term bond is often called a
note.[36]

The language of the Constitution is simple and clear as it is broad. It allows the
President to contract and guarantee foreign loans. It makes no prohibition on the
issuance of certain kinds of loans or distinctions as to which kinds of debt
instruments are more onerous than others. This Court may not ascribe to the
Constitution meanings and restrictions that would unduly burden the powers of the
President. The plain, clear and unambiguous language of the Constitution should be
construed in a sense that will allow the full exercise of the power provided therein. It
would be the worst kind of judicial legislation if the courts were to misconstrue and
change the meaning of the organic act.
The only restriction that the Constitution provides, aside from the prior
concurrence of the Monetary Board, is that the loans must be subject to limitations
provided by law. In this regard, we note that Republic Act (R.A.) No. 245 as amended
by Pres. Decree (P.D.) No. 142, s. 1973, entitled An Act Authorizing the Secretary of
Finance to Borrow to Meet Public Expenditures Authorized by Law, and for Other
Purposes, allows foreign loans to be contracted in the form of, inter alia, bonds. Thus:

Sec. 1. In order to meet public expenditures authorized by law or to

provide for the purchase, redemption, or refunding of any obligations,
either direct or guaranteed of the Philippine Government, the Secretary
of Finance, with the approval of the President of the Philippines,
after consultation with the Monetary Board, is authorized to
borrow from time to time on the credit of the Republic of the
Philippines such sum or sums as in his judgment may be
 necessary, and to issue therefor evidences of indebtedness of the
Philippine Government."
Such evidences of indebtedness may be of the following types:

....

c. Treasury bonds, notes, securities or other evidences of

indebtedness having maturities of one year or more but not
exceeding twenty-five years from the date of issue. (Emphasis
supplied.)

Under the foregoing provisions, sovereign bonds may be issued not only to
supplement government expenditures but also to provide for the
purchase,[37] redemption,[38] or refunding[39] of any obligation, either direct or
guaranteed, of the Philippine Government.

Petitioners, however, point out that a supposed difference between contracting

a loan and issuing bonds is that the former creates a definite creditor-debtor
relationship between the parties while the latter does not.[40] They explain that a
contract of loan enables the debtor to restructure or novate the loan, which benefit is
lost upon the conversion of the debts to bearer bonds such that the Philippines
surrenders the novatable character of a loan contract for the irrevocable and
unpostponable demandability of a bearer bond.[41] Allegedly, the Constitution
prohibits the President from issuing bonds which are far more onerous than loans.[42]

This line of thinking is flawed to say the least. The negotiable character of the
subject bonds is not mutually exclusive with the Republics freedom to negotiate with
bondholders for the revision of the terms of the debt. Moreover, the securities market
provides some flexibilityif the Philippines wants to pay in advance, it can buy out its
bonds in the market; if interest rates go down but the Philippines does not have
money to retire the bonds, it can replace the old bonds with new ones; if it defaults on
the bonds, the bondholders shall organize and bring about a re-negotiation or
settlement.[43] In fact, several countries have restructured their sovereign bonds in
view either of
inability and/or unwillingness to pay the indebtedness.[44] Petitioners have not
presented a plausible reason that would preclude the Philippines from acting in a
similar fashion, should it so opt.

This theory may even be dismissed in a perfunctory manner since petitioners

are merely expecting that the Philippines would opt to restructure the bonds but with
the negotiable character of the bonds, would be prevented from so doing. This is a
contingency which petitioners do not assert as having come to pass or even imminent.
Consummated acts of the executive cannot be struck down by this Court merely on
the basis of petitioners anticipatory cavils.

On the Buyback Scheme

In their Comment, petitioners assert that the power to pay public debts lies with
Congress and was deliberately

withheld by the Constitution from the President.[45] It is true that in the balance of
power between the three branches of government, it is Congress that manages the
countrys coffers by virtue of its taxing and spending powers. However, the law-
making authority has promulgated a law ordaining an automatic appropriations
provision for debt servicing[46] by virtue of which the President is empowered to
execute debt payments without the need for further appropriations. Regarding these
legislative enactments, this Court has held, viz:

Congress deliberates or acts on the budget proposals of the President,

and Congress in the exercise of its own judgment and wisdom
formulates an appropriation act precisely following the process
established by the Constitution, which specifies that no money may be
paid from the Treasury except in accordance with an appropriation made
by law.

Debt service is not included in the General Appropriation Act, since

authorization therefor already exists under RA Nos. 4860 and 245, as
amended, and PD 1967. Precisely in the light of this subsisting
authorization as embodied in said Republic Acts and PD for debt
service, Congress does not concern itself with details for implementation
by the Executive, but largely with annual levels and approval thereof
 upon due deliberations as part of the whole obligation program for the
year. Upon such approval, Congress has spoken and cannot be said to
have delegated its wisdom to the Executive, on whose part lies the
implementation or execution of the legislative wisdom.[47]

Specific legal authority for the buyback of loans is established under Section 2 of
Republic Act (R.A.) No. 240, viz:

Sec. 2. The Secretary of Finance shall cause to be paid out of

any moneys in the National Treasury not otherwise
appropriated, or from any sinking funds provided for the
purpose by law, any interest falling due, or accruing, on any
portion of the public debt authorized by law. He shall also
cause to be paid out of any such money, or from any such
sinking funds the principal amount of any obligations which
have matured, or which have been called for redemption or for
which redemption has been demanded in accordance with terms
prescribed by him prior to date of issue: Provided, however, That
he may, if he so chooses and if the holder is willing, exchange any
such obligation with any other direct or guaranteed obligation or
obligations of the Philippine Government of equivalent value. In
the case of interest-bearing obligations, he shall pay not less than
their face value; in the case of obligations issued at a discount he
shall pay the face value at maturity; or, if redeemed prior to
maturity, such portion of the face value as is prescribed by
the terms and conditions under which such obligations were
originally issued. (Emphasis supplied.)

The afore-quoted provisions of law specifically allow the President to pre-terminate

debts without further action from Congress.

Petitioners claim that the buyback scheme is neither a guarantee nor a loan
since its underlying intent is to extinguish debts that are not yet due and
demandable.[48] Thus, they suggest that contracts entered pursuant to the buyback
scheme are unconstitutional for not being among those contemplated in Sec. 20, Art.
VII of the Constitution.
 Buyback is a necessary power which springs from the grant of the foreign
borrowing power. Every statute is understood, by implication, to contain all such
provisions as may be necessary to effectuate its object and purpose, or to make
effective rights, powers, privileges or jurisdiction which it grants, including all such
collateral and subsidiary consequences as may be fairly and logically inferred from its
terms.[49] The President is not empowered to borrow money from foreign banks and
governments on the credit of the Republic only to be left bereft of authority to
implement the payment despite appropriations therefor.

Even petitioners concede that [t]he Constitution, as a rule, does not

enumeratelet alone enumerate allthe acts which the President (or any other public
officer) may not

do,[50] and [t]he fact that the Constitution does not explicitly bar the President from
exercising a power does not mean that he or she does not have that power. [51] It is
inescapable from the standpoint of reason and necessity that the authority to contract
foreign loans and guarantees without restrictions on payment or manner
thereof coupled with the availability of the corresponding appropriations, must
include the power to effect payments or to make payments unavailing by either
restructuring the loans or even refusing to make any payment altogether.

More fundamentally, when taken in the context of sovereign debts, a buyback

is simply the purchase by the sovereign issuer of its own debts at a discount. Clearly
then, the objection to the validity of the buyback scheme is without basis.

Second Issue: Delegation of Power

Petitioners stress that unlike other powers which may be validly delegated by
the President, the power to incur foreign debts is expressly reserved by the
Constitution in the person of the President. They argue that the gravity by which the
exercise of the power will affect the Filipino nation requires that the President alone
must exercise this power. They submit that the requirement of prior concurrence of
an entity specifically named by the Constitutionthe Monetary Boardreinforces the
submission that not respondents but the President alone and personally can validly
bind the country.

Petitioners position is negated both by explicit constitutional[52] and

legal[53]imprimaturs, as well as the doctrine of qualified political agency.
 The evident exigency of having the Secretary of Finance implement the
decision of the President to execute the debt-relief contracts is made manifest by the
fact that the process of establishing and executing a strategy for managing the
governments debt is deep within the realm of the expertise of the Department of
Finance, primed as it is to raise the required amount of funding, achieve its risk and
cost objectives, and meet any other sovereign debt management goals.[54]

If, as petitioners would have it, the President were to personally exercise every
aspect of the foreign borrowing power, he/she would have to pause from running the
country long enough to focus on a welter of time-consuming detailed activitiesthe
propriety of incurring/guaranteeing loans, studying and choosing among the many
methods that may be taken toward this end, meeting countless times with creditor
representatives to negotiate, obtaining the concurrence of the Monetary Board,
explaining and defending the negotiated deal to the public, and more often than not,
flying to the agreed place of execution to sign the documents. This sort of
constitutional interpretation would negate the very existence of cabinet positions and
the respective expertise which the holders thereof are accorded and would unduly
hamper the Presidents effectivity in running the government.

Necessity thus gave birth to the doctrine of qualified political agency, later adopted in
Villena v. Secretary of the Interior[55] from American jurisprudence, viz:

With reference to the Executive Department of the government, there is

one purpose which is crystal-clear and is readily visible without the
projection of judicial searchlight, and that is the establishment of a
single, not plural, Executive. The first section of Article VII of the
Constitution, dealing with the Executive Department, begins with the
enunciation of the principle that "The executive power shall be vested in
a President of the Philippines." This means that the President of
the Philippines is the Executive of the Government of the Philippines,
and no other. The heads of the executive departments occupy political
positions and hold office in an advisory capacity, and, in the language of
Thomas Jefferson, "should be of the President's bosom confidence" (7
Writings, Ford ed., 498), and, in the language of Attorney-General
Cushing (7 Op., Attorney-General, 453), "are subject to the direction of
the President." Without minimizing the importance of the heads of the
various departments, their personality is in reality but the projection of
that of the President. Stated otherwise, and as forcibly characterized by
Chief Justice Taft of the Supreme Court of the United States, "each head
of a department is, and must be, the President's alter ego in the matters
of that department where the President is required by law to exercise
 authority" (Myers vs. United States, 47 Sup. Ct. Rep., 21 at 30; 272 U. S.,
52 at 133; 71 Law. ed., 160).[56]

As it was, the backdrop consisted of a major policy determination made by

then President Aquino that sovereign debts have to be respected and the concomitant
reality that the Philippines did not have enough funds to pay the debts. Inevitably, it
fell upon the Secretary of Finance, as the alter ego of the President regarding the sound
and efficient management of the financial resources of the Government,[57] to
formulate a scheme for the implementation of the policy publicly expressed by the
President herself.

Nevertheless, there are powers vested in the President by the Constitution

which may not be delegated to or exercised by an agent or alter ego of the President.
Justice Laurel, in his ponencia in Villena, makes this clear:

Withal, at first blush, the argument of ratification may seem plausible

under the circumstances, it should be observed that there are certain acts
which, by their very nature, cannot be validated by subsequent approval
or ratification by the President. There are certain constitutional powers
and prerogatives of the Chief Executive of the Nation which must be
exercised by him in person and no amount of approval or ratification
will validate the exercise of any of those powers by any other person.
Such, for instance, in his power to suspend the writ of habeas corpus
and proclaim martial law (PAR. 3, SEC. 11, Art. VII) and the exercise by
him of the benign prerogative of mercy (par. 6, sec. 11, idem).[58]

These distinctions hold true to this day. There are certain presidential powers which
arise out of exceptional circumstances, and if exercised, would involve the suspension
of fundamental freedoms, or at least call for the supersedence of executive
prerogatives over those exercised by co-equal branches of government. The
declaration of martial law, the suspension of the writ of habeas corpus, and the
exercise of the pardoning power notwithstanding the judicial determination of guilt of
the accused, all fall within this special class that demands the exclusive exercise by the
President of the constitutionally vested power. The list is by no means exclusive, but
there must be a showing that the executive power in question is of similar gravitas and
exceptional import.

We cannot conclude that the power of the President to contract or guarantee

foreign debts falls within the same exceptional class. Indubitably, the decision to
contract or guarantee foreign debts is of vital public interest, but only
akin to any contractual obligation undertaken by the sovereign, which arises not from
any extraordinary incident, but from the established functions of governance.

Another important qualification must be made. The Secretary of Finance or

any designated alter ego of the President is bound to secure the latters prior consent to
or subsequent ratification of his acts. In the matter of contracting or guaranteeing
foreign loans, the repudiation by the President of the very acts performed in this
regard by the alter ego will definitely have binding effect. Had petitioners herein
succeeded in demonstrating that the President actually withheld approval and/or
repudiated the Financing Program, there could be a cause of action to nullify the acts
of respondents. Notably though, petitioners do not assert that respondents pursued
the Program without prior authorization of the President or that the terms of the
contract were agreed upon without the Presidents authorization. Congruent with the
avowed preference of then President Aquino to honor and restructure existing foreign
debts, the lack of showing that she countermanded the acts of respondents leads us to
conclude that said acts carried presidential approval.

With constitutional parameters already established, we may also note, as a

source of suppletory guidance, the provisions of R.A. No. 245. The afore-quoted
Section 1 thereof empowers the Secretary of Finance with the approval of the
President and after consultation[59]of the Monetary Board, to borrow from time to
time on the credit of the Republic of the Philippines such sum or sums as in his
judgment may be necessary, and to issue therefor evidences of indebtedness of the
Philippine Government. Ineluctably then, while the President wields the borrowing
power it is the Secretary of Finance who normally carries out its thrusts.

In our recent rulings in Southern Cross Cement Corporation v. The Philippine Cement
Manufacturers Corp.,[60] this Court had occasion to examine the authority granted by
Congress to the Department of Trade and Industry (DTI) Secretary to impose
safeguard measures pursuant to the Safeguard Measures Act. In doing so, the Court
was impelled to construe Section 28(2), Article VI of the Constitution, which allowed
Congress, by law, to authorize the President to fix within specified limits, and subject
to such limitations and restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts within the framework
of the national development program of the Government.[61]

While the Court refused to uphold the broad construction of the grant of
power as preferred by the DTI Secretary, it nonetheless tacitly acknowledged that
Congress could designate the DTI Secretary, in his capacity as alter ego of the
President, to exercise the authority vested on the chief executive under Section 28(2),
Article VI.[62] At the same time, the Court emphasized that since Section 28(2), Article
VI authorized Congress to impose limitations and restrictions on the authority of the
President to impose tariffs and imposts, the DTI Secretary was necessarily subjected
to the same restrictions that Congress could impose on the President in the exercise
of this taxing power.

Similarly, in the instant case, the Constitution allocates to the President the
exercise of the foreign borrowing power subject to such limitations as may be
provided under law. Following Southern Cross, but in line with the limitations as
defined in Villena, the presidential prerogative may be exercised by the Presidents alter
ego, who in this case is the Secretary of Finance.

It bears emphasis that apart from the Constitution, there is also a relevant
statute, R.A. No. 245, that establishes the parameters by which the alter ego may act in
behalf of the President with respect to the borrowing power. This law expressly
provides that the Secretary of Finance may enter into foreign borrowing contracts.
This law neither amends nor goes contrary to the Constitution but merely implements
the subject provision in a manner consistent with the structure of the Executive
Department and the alter ego doctine. In this regard, respondents have declared that
they have followed the restrictions provided under R.A. No. 245,[63] which include the
requisite presidential authorization and which, in the absence of proof and even
allegation to the contrary, should be regarded in a fashion congruent with the
presumption of regularity bestowed on acts done by public officials.

Moreover, in praying that the acts of the respondents, especially that of the
Secretary of Finance, be nullified as being in violation of a restrictive constitutional
interpretation, petitioners in effect would have this Court declare R.A. No. 245
unconstitutional. We will not strike

down a law or provisions thereof without so much as a direct attack thereon when
simple and logical statutory construction would suffice.
Petitioners also submit that the unrestricted character of the Financing Program
violates the framers intent behind Section 20, Article VII to restrict the power of the
President. This intent, petitioners note, is embodied in the proviso in Sec. 20, Art.
VII, which states that said power is subject to such limitations as may be provided
under law. However, as previously discussed, the debt-relief contracts are governed by
the terms of R.A. No. 245, as amended by P.D. No. 142 s. 1973, and therefore were
not developed in an unrestricted setting.

Third Issue: Grave Abuse of Discretion and

Violation of Constitutional Policies

We treat the remaining issues jointly, for in view of the foregoing determination, the
general allegation of grave abuse of discretion on the part of respondents would arise
from the purported violation of various state policies as expressed in the Constitution.

Petitioners allege that the Financing Program violates the constitutional state policies
to promote a social order that will ensure the prosperity and independence of the
nation and free the people from poverty,[64] foster social justice in all phases of
national development,[65] and develop a self-reliant and independent national economy
effectively controlled by Filipinos;[66]thus, the contracts executed or to be executed
pursuant thereto were or would be tainted by a grave abuse of discretion amounting
to lack or excess of jurisdiction.

Respondents cite the following in support of the propriety of their acts: [67] (1) a
Department of Finance study showing that as a result of the implementation of
voluntary debt reductions schemes, the countrys debt stock was reduced by U.S. $4.4
billion as of December 1991;[68] (2) revelations made by independent individuals made
in a hearing before the Senate Committee on Economic Affairs indicating that the
assailed agreements would bring about substantial benefits to the country; [69] and (3)
the Joint Legislative-Executive Foreign Debt Councils endorsement of the approval
of the financing package containing the debt-

relief agreements and issuance of a Motion to Urge the Philippine Debt Negotiating
Panel to continue with the negotiation on the aforesaid package.[70]
Even with these justifications, respondents aver that their acts are within the arena of
political questions which, based on the doctrine of separation of powers, [71] the
judiciary must leave without interference lest the courts substitute their judgment for
that of the official concerned and decide a matter which by its nature or law is for the
latter alone to decide.[72]

On the other hand, in furtherance of their argument on respondents violation of

constitutional policies, petitioners cite an article of Jude Esguerra, The 1992 Buyback
and Securitization Agreement with Philippine Commercial Bank Creditors,[73] in illustrating a
best-case scenario in entering the subject debt-relief agreements. The computation
results in a yield of $218.99 million, rather

than the $2,041.00 million claimed by the debt negotiators.[74] On the other hand, the
worst-case scenario allegedly is that a net amount of $1.638 million will flow out of
the country as a result of the debt package.[75]

Assuming the accuracy of the foregoing for the nonce, despite the watered-down
parameters of petitioners computations, we can make no conclusion other than that
respondents efforts were geared towards debt-relief with marked positive results and
towards achieving the constitutional policies which petitioners so hastily declare as
having been violated by respondents. We recognize that as with other schemes
dependent on volatile market and economic structures, the contracts entered into by
respondents may possibly have a net outflow and therefore negative result. However,
even petitioners call this latter event the worst-case scenario. Plans are seldom
foolproof. To ask the Court to strike down debt-relief contracts, which, according to
independent third party evaluations using historically-suggested rates would result in
substantial debt-relief,[76] based merely on the possibility of petitioners worst-case
scenario projection, hardly seems reasonable.

Moreover, the policies set by the Constitution as litanized by petitioners are not a
panacea that can annul every governmental act sought to be struck down. The gist of
petitioners arguments on violation of constitutional policies and grave abuse of
discretion boils down to their allegation that the debt-relief agreements entered into
by respondents do not deliver the kind of debt-relief that petitioners would want.
Petitioners cite the aforementioned article in stating that that the agreement achieves
little that cannot be gained through less complicated means like postponing
(rescheduling) principal payments,[77] thus:
 [T]he price of success in putting together this debt-relief package
(indicates) the possibility that a simple rescheduling agreement may well
turn out to be less expensive than this comprehensive debt-relief
package. This means that in the next six years the humble and simple
rescheduling process may well be the lesser evil because there is that
distinct possibility that less money will flow out of the country as a
result.

Note must be taken that from these citations, petitioners submit that there is possibly a
better way to go about debt rescheduling and, on that basis, insist that the acts of
respondents must be struck down. These are rather tenuous grounds to condemn the
subject agreements as violative of constitutional principles.

Conclusion

The raison d etre of the Financing Program is to manage debts incurred by

the Philippines in a manner that will lessen the burden on the Filipino taxpayersthus
the term debt-relief agreements. The measures objected to by petitioners were not
aimed at incurring more debts but at terminating pre-existing debts and were backed
by the know-how of the countrys economic managers as affirmed by third party
empirical analysis.

That the means employed to achieve the goal of debt-relief do not sit well with
petitioners is beyond the power of this Court to remedy. The exercise of the power of
judicial review is merely to checknot supplantthe Executive, or to simply ascertain
whether he has gone beyond the constitutional limits of his jurisdiction but not to
exercise the power vested in him or to determine the wisdom of his act.[78] In cases
where the main purpose is to nullify governmental acts whether as unconstitutional or
done with grave abuse of discretion, there is a strong presumption in favor of the
validity of the assailed acts. The heavy onus is in on petitioners to overcome the
presumption of regularity.

We find that petitioners have not sufficiently established any basis for the Court
to declare the acts of respondents as unconstitutional.

WHEREFORE the petition is hereby DISMISSED. No costs.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 167919 February 14, 2007

PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA (retired)

and PMA 59 FOUNDATION, INC., rep. by its President, COMMODORE
CARLOS L. AGUSTIN (retired), Petitioners,
vs.
HON. SECRETARY HERMOGENES E. EBDANE, JR., in his capacity as
Secretary of the DEPARTMENT OF PUBLIC WORKS and HIGHWAYS,
HON. SECRETARY EMILIA T. BONCODIN, in her capacity as Secretary of
the DEPARTMENT OF BUDGET and MANAGEMENT, HON.
SECRETARY CESAR V. PURISIMA, in his capacity as Secretary of the
DEPARTMENT OF FINANCE, HON. TREASURER NORMA L. LASALA,
in her capacity as Treasurer of the Bureau of Treasury, and CHINA ROAD
and BRIDGE CORPORATION, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for certiorari and prohibition under Rule 65 of the
Rules of Court seeking to set aside and nullify Resolution No. PJHL-A-04-012 dated
May 7, 2004 issued by the Bids and Awards Committee (BAC) of the Department of
Public Works and Highways (DPWH) and approved by then DPWH Acting Secretary
Florante Soriquez. The assailed resolution recommended the award to private
respondent China Road & Bridge Corporation of the contract for the implementation
of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga road,
with the length of 79.818 kilometers, in the island province of Catanduanes.

The CP I project is one of the four packages comprising the project for the
improvement/rehabilitation of the Catanduanes Circumferential Road, covering a
total length of about 204.515 kilometers, which is the main highway in Catanduanes
Province. The road section (Catanduanes Circumferential Road) is part of the Arterial
Road Links Development Project (Phase IV) funded under Loan Agreement No. PH-
P204 dated December 28, 1999 between the Japan Bank for International
Cooperation (JBIC) and the Government of the Republic of the Philippines.

Background

Based on the Exchange of Notes dated December 27, 1999,1 the Government of
Japan and the Government of the Philippines, through their respective
representatives, namely, Mr. Yoshihisa Ara, Ambassador Extraordinary and
Plenipotentiary of Japan to the Republic of the Philippines, and then Secretary of
Foreign Affairs Domingo L. Siazon, have reached an understanding concerning
Japanese loans to be extended to the Philippines. These loans were aimed at
promoting our countrys economic stabilization and development efforts.

The Exchange of Notes consisted of two documents: (1) a Letter from the
Government of Japan, signed by Ambassador Ara, addressed to then Secretary of
Foreign Affairs Siazon, confirming the understanding reached between the two
governments concerning the loans to be extended by the Government of Japan to the
Philippines; and (2) a document denominated as Records of Discussion where the
salient terms of the loans as set forth by the Government of Japan, through the
Japanese delegation, were reiterated and the said terms were accepted by the
Philippine delegation. Both Ambassador Ara and then Secretary Siazon signed the
Records of Discussion as representatives of the Government of Japan and Philippine
Government, respectively.

The Exchange of Notes provided that the loans to be extended by the Government
of Japan to the Philippines consisted of two loans: Loan I and Loan II. The Exchange
of Notes stated in part:

1. A loan in Japanese yen up to the amount of seventy-nine billion eight

hundred and sixty-one million yen (Y79,861,000,000) (hereinafter referred to as
"the Loan I") will be extended, in accordance with the relevant laws and
regulations of Japan, to the Government of the Republic of the Philippines
(hereinafter referred to as "the Borrower I") by the Japan Bank for
International Cooperation (hereinafter referred to as "the Bank") to implement
the projects enumerated in the List A attached hereto (hereinafter referred to as
"the List A") according to the allocation for each project as specified in the List
A.
 2. (1) The Loan I will be made available by loan agreements to be concluded
between the Borrower I and the Bank. The terms and conditions of the Loan I
as well as the procedure for its utilization will be governed by said loan
agreements which will contain, inter alia, the following principles:

...

(2) Each of the loan agreements mentioned in sub-paragraph (1) above

will be concluded after the Bank is satisfied of the feasibility, including
environmental consideration, of the project to which such loan
agreement relates.

3. (1) The Loan I will be made available to cover payments to be made by the
Philippine executing agencies to suppliers, contractors and/or consultants of
eligible source countries under such contracts as may be entered into between
them for purchases of products and/or services required for the
implementation of the projects enumerated in the List A, provided that such
purchases are made in such eligible source countries for products produced in
and/or services supplied from those countries.

(2) The scope of eligible source countries mentioned in sub-paragraph

(1) above will be agreed upon between the authorities concerned of the
two Governments.

(3) A part of the Loan I may be used to cover eligible local currency
requirements for the implementation of the projects enumerated in the
List A.

4. With regard to the shipping and marine insurance of the products purchased
under the Loan I, the Government of the Republic of the Philippines will
refrain from imposing any restrictions that may hinder fair and free
competition among the shipping and marine insurance companies.

x x x x2 1awphi1.net

Pertinently, List A, which specified the projects to be financed under the Loan I,
includes the Arterial Road Links Development Project (Phase IV), to wit:

LIST A

Maximum amount in million yen)

 1. Secondary Education Development and Improvement Project 7,210

2. Rural Water Supply Project (Phase V) 951

3. Bohol Irrigation Project (Phase II) 6,078

4. Agrarian Reform Infrastructure Support Project (Phase II) 16,990

5. Arterial Road Links Development Project (Phase IV) 15,384

6. Cordillera Road Improvement Project 5,852

7. Philippines-Japan Friendship Highway Mindanao Section Rehabilitation

Project (Phase II) 7,434

8. Rehabilitation and Maintenance of Bridges Along Arterial Roads Project

(Phase IV) 5,068

9. Maritime Safety Improvement Project (Phase C) 4,714

10. Pinatubo Hazard Urgent Mitigation Project (Phase II) 9,013

11. Pasig-Marikina River Channel Improvement Project (Phase I) 1,167

Total 79,8613

The Exchange of Notes further provided that:

III

xxxx

3. The Government of the Republic of the Philippines will ensure that the products
and/or services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-
paragraph (1) of paragraph 4 of Part II are procured in accordance with the guidelines
for procurement of the Bank, which set forth, inter alia, the procedures of
international tendering to be followed except where such procedures are inapplicable
or inappropriate.

x x x x4

The Records of Discussion, which formed part of the Exchange of Notes, also stated
in part, thus:
xxxx

1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of

Notes concerning the financing of eligible local currency requirements for the
implementation of the projects mentioned in the said sub-paragraph, the
representative of the Japanese delegation stated that:

(1) such requirement of local currency as general administrative expenses,

interest during construction, taxes and duties, expenses concerning office,
remuneration to employees of the executing agencies and housing, not directly
related to the implementation of the said projects, as well as purchase of land
properties, compensation and the like, however, will not be considered as
eligible for financing under the Loan I; and

(2) the procurement of products and/or services will be made in accordance

with the procedures of international competitive tendering except where such
procedures are inapplicable and inappropriate.

x x x x5

Thus, in accordance with the agreement reached by the Government of Japan and the
Philippine Government, as expressed in the Exchange of Notes between the
representatives of the two governments, the Philippines obtained from and was
granted a loan by the JBIC. Loan Agreement No. PH-P204 dated December 28, 1999,
in particular, stated as follows:

Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK
FOR INTERNATIONAL COOPERATION and the GOVERNMENT OF THE
REPUBLIC OF THE PHILIPPINES.

In the light of the contents of the Exchange of Notes between the Government of
Japan and the Government of the Republic of the Philippines dated December 27,
1999, concerning Japanese loans to be extended with a view to promoting the
economic stabilization and development efforts of the Republic of the Philippines.

JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to

as "the BANK") and THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES (hereinafter referred to as "the Borrower") herewith conclude the
following Loan Agreement (hereinafter referred to as "the Loan Agreement", which
includes all agreements supplemental hereto).

x x x x6
Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to
lend the Philippine Government an amount not exceeding FIFTEEN BILLION
THREE HUNDRED EIGHTY-FOUR MILLION Japanese Yen (Y 15,384,000,000)
as principal for the implementation of the Arterial Road Links Development Project
(Phase IV) on the terms and conditions set forth in the Loan Agreement and in
accordance with the relevant laws and regulations of Japan.7 The said amount shall be
used for the purchase of eligible goods and services necessary for the implementation
of the above-mentioned project from suppliers, contractors or consultants.8

Further, it was provided under the said loan agreement that other terms and
conditions generally applicable thereto shall be set forth in the General Terms and
Conditions, dated November 1987, issued by the Overseas Economic Cooperation
Fund (OECF) and for the purpose, reference to "the OECF" and "Fund" therein
(General Terms and Conditions) shall be substituted by "the JBIC" and "Bank,"
respectively.9 Specifically, the guidelines for procurement of all goods and services to
be financed out of the proceeds of the said loan shall be as stipulated in the
Guidelines for Procurement under OECF Loans dated December 1997 (herein
referred to as JBIC Procurement Guidelines).10

As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used
to finance the Arterial Road Links Development Project (Phase IV), of which the
Catanduanes Circumferential Road was a part. This road section, in turn, was divided
into four contract packages (CP):

CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms

CP II: Viga-Bagamanoc Road - 10.40 kms.

CP III: Bagamanoc-Pandan Road - 47.50 kms.

CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11

Subsequently, the DPWH, as the government agency tasked to implement the project,
caused the publication of the "Invitation to Prequalify and to Bid" for the
implementation of the CP I project in two leading national newspapers, namely, the
Manila Times and Manila Standard on November 22 and 29, and December 5, 2002.

A total of twenty-three (23) foreign and local contractors responded to the invitation
by submitting their accomplished prequalification documents on January 23, 2003. In
accordance with the established prequalification criteria, eight contractors were
evaluated or considered eligible to bid as concurred by the JBIC. One of them,
however, withdrew; thus, only seven contractors submitted their bid proposals.
The bid documents submitted by the prequalified contractors/bidders were examined
to determine their compliance with the requirements as
stipulated in Article 6 of the Instruction to Bidders.12 After the lapse of the deadline
for the submission of bid proposals, the opening of the bids commenced immediately.
Prior to the opening of the respective bid proposals, it was announced that the
Approved Budget for the Contract (ABC) was in the amount of P738,710,563.67.

The result of the bidding revealed the following three lowest bidders and their
respective bids vis--vis the ABC:13

Original Bid As Read As-Corrected Bid

Name of Bidder Variance
(Pesos) Amount (Pesos)
1) China Road And
P 993,183,904.98 P952,564,821.71 28.95%
Bridge Corporation
2) Cavite Ideal Intl
P1,099,926,598.11 P1,099,926,598.11 48.90%
Const. Devt. Corp.
3) Italian Thai Devt.
P1,125,022,075.34 P1,125,392,475.36 52.35%
Public Company, Ltd.

The bid of private respondent China Road & Bridge Corporation was corrected from
the original P993,183,904.98 (with variance of 34.45% from the ABC)
to P952,564,821.71 (with variance of 28.95% from the ABC) based on their letter
clarification dated April 21, 2004.14

After further evaluation of the bids, particularly those of the lowest three bidders, Mr.
Hedifume Ezawa, Project Manager of the Catanduanes Circumferential Road
Improvement Project (CCRIP), in his Contractors Bid Evaluation Report dated April
2004, recommended the award of the contract to private respondent China Road &
Bridge Corporation:

In accordance with the Guidelines for the Procurements under ODA [Official
Development Assistance] Loans, the Consultant hereby recommends the award of the
contract for the construction of CP I, San Andres (Codon) Virac Jct. Bato Viga
Section under the Arterial Road Links Development Projects, Phase IV, JBIC Loan
No. PH-P204 to the Lowest Complying Bidder, China Road and Bridge Corporation,
at its total corrected bid amount of Nine Hundred Fifty-Two Million Five Hundred
Sixty-Four Thousand Eight Hundred Twenty-One & 71/100 Pesos.15
The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued
the assailed Resolution No. PJHL-A-04-012 dated May 7, 2004 recommending the
award in favor of private respondent China Road & Bridge Corporation of the
contract for the implementation of civil works for CP I, San Andres (Codon) Virac
Jct. Bato Viga Road (Catanduanes Circumferential Road Improvement Project) of
the Arterial Roads Links Development Project, Phase IV, located in Catanduanes
Province, under JBIC Loan Agreement No. PH-P204.16 On September 29, 2004, a
Contract of Agreement was entered into by and between the DPWH and private
respondent China Road & Bridge Corporation for the implementation of the CP I
project.

The Parties

Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer,
former lawmaker, and a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims
that he filed the suit as a taxpayer, former military officer, and a Filipino citizen.
Petitioner PMA 59 Foundation, Inc., on the other hand, is a non-stock, non-profit
corporation organized under the existing Philippine laws. It claims that its members
are all taxpayers and alumni of the Philippine Military Academy. It is represented by
its President, Carlos L. Agustin.

Named as public respondents are the DPWH, as the government agency tasked with
the implementation of government infrastructure projects; the Department of Budget
and Management (DBM) as the government agency that authorizes the release and
disbursement of public funds for the implementation of government infrastructure
projects; and the Department of Finance (DOF) as the government agency that acts
as the custodian and manager of all financial resources of the government. Also
named as individual public respondents are Hermogenes E. Ebdane, Jr., Emilia T.
Boncodin and Cesar V. Purisima in their capacities as former Secretaries of the
DPWH, DBM and DOF, respectively. On the other hand, public respondent Norma
L. Lasala was impleaded in her capacity as Treasurer of the Bureau of Treasury.

Private respondent China Road & Bridge Corporation is a duly organized corporation
engaged in the business of construction.

The Petitioners Case

The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated
May 7, 2004, which recommended the award to private respondent China Road &
Bridge Corporation of the contract for the implementation of the civil works of CP I.
They also seek to annul the contract of agreement subsequently entered into by and
between the DPWH and private respondent China Road & Bridge Corporation
pursuant to the said resolution.

They pose the following issues for the Courts resolution:

I. Whether or not Petitioners have standing to file the instant Petition.

II. Whether or not Petitioners are entitled to the issuance of a Writ of

Certiorari reversing and setting aside DPWH Resolution No. PJHL-A-04-012,
recommending the award of the Contract Agreement for the implementation
of civil works for CPI, San Andres (CODON)-VIRAC-JCT BATO-VIGA
ROAD (CATANDUANES CIRCUMFERENTIAL ROAD
IMPROVEMENT PROJECT) of the Arterial Road Links Development
Project, Phase IV, located in Catanduanes Province, under JBIC L/A No. PH-
P204, to China Road & Bridge Corporation.

III. Whether or not the Contract Agreement executed by and between the
Republic of the Philippines, through the Department of Public Works and
Highways, and the China Road & Bridge Corporation, for the implementation
of civil works for CPI, San Andres (CODON)-VIRAC-JCT BATO-VIGA
ROAD (CATANDUANES CIRCUMFERENTIAL ROAD
IMPROVEMENT PROJECT) of the Arterial Road Links Development
Project, Phase IV, located in Catanduanes Province, under JBIC L/A No. PH-
P204, is void ab initio.

IV. Whether or not Petitioners are entitled to the issuance of a Writ of

Prohibition permanently prohibiting the implementation of DPWH Resolution
No. PJHL-A-04-012 and the Contract Agreement executed by and between the
Republic of the Philippines (through the Department of Public Works and
Highways) and the China Road & Bridge Corporation, and the disbursement of
public funds by the [D]epartment of [B]udget and [M]anagement for such
purpose.

V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a

Temporary Restraining Order immediately enjoining the implementation of
DPWH Resolution No. PJHL-A-04-012 and the Contract Agreement executed
by and between the Republic of the Philippines (through the Department of
Public Works and Highways) and the China Road & Bridge Corporation, and
the disbursement of public funds by the Department of Budget and
Management for such purpose, during the pendency of this case.17
Preliminarily, the petitioners assert that they have standing or locus standi to file the
instant petition. They claim that as taxpayers and concerned citizens, they have the
right and duty to question the expenditure of public funds on illegal acts. They point
out that the Philippine Government allocates a peso-counterpart for CP I, which
amount is appropriated by Congress in the General Appropriations Act; hence, funds
that are being utilized in the implementation of the questioned project also partake of
taxpayers money. The present action, as a taxpayers suit, is thus allegedly proper.

They likewise characterize the instant petition as one of transcendental importance

that warrants the Courts adoption of a liberal stance on the issue of standing. It cited
several cases where the Court brushed aside procedural technicalities in order to
resolve issues involving paramount public interest and transcendental
importance.18 Further, petitioner Abaya asserts that he possesses the requisite standing
as a former member of the House of Representatives and one of the principal authors
of Republic Act No. 9184 (RA 9184)19 known as the Government Procurement
Reform Act, the law allegedly violated by the public respondents.

On the substantive issues, the petitioners anchor the instant petition on the
contention that the award of the contract to private respondent China Road & Bridge
Corporation violates RA 9184, particularly Section 31 thereof which reads:

SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the
Bid prices. Bid prices that exceed this ceiling shall be disqualified outright from
further participating in the bidding. There shall be no lower limit to the amount of the
award.

In relation thereto, the petitioners cite the definition of the ABC, thus:

SEC. 5. Definition of Terms.

xxx

(a) Approved Budget for the Contract (ABC). refers to the budget for the contract
duly approved by the Head of the Procuring Entity, as provided for in the General
Appropriations Act and/or continuing appropriations, in the case of National
Government Agencies; the Corporate Budget for the contract approved by the
governing Boards, pursuant to E.O. No. 518, series of 1979, in the case of
Government-Owned and/or Controlled Corporations, Government Financial
Institutions and State Universities and Colleges; and the Budget for the contract
approved by the respective Sanggunian, in the case of Local Government Units.

xxx
The petitioners theorize that the foregoing provisions show the mandatory character
of ceilings or upper limits of every bid. Under the above-quoted provisions of RA
9184, all bids or awards should not exceed the ceilings or upper limits; otherwise, the
contract is deemed void and inexistent.

Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion
because it recommended the award of the contract to private respondent China Road
& Bridge Corporation whose bid was more than P200 million overpriced based on
the ABC. As such, the award is allegedly illegal and unconscionable.

In this connection, the petitioners opine that the contract subsequently entered into
by and between the DPWH and private respondent China Road & Bridge
Corporation is void ab initio for being prohibited by RA 9184. They stress that
Section 31 thereof expressly provides that "bid prices that exceed this ceiling shall be
disqualified outright from participating in the bidding." The upper limit or ceiling is
called the ABC and since the bid of private respondent China Road & Bridge
Corporation exceeded the ABC for the CP I project, it should have been allegedly
disqualified from the bidding process and should not, by law, have been awarded the
said contract. They invoke Article 1409 of the Civil Code:

ART. 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy;

(2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of the transaction;

(4) Those whose object is outside the commerce of men;

(5) Those which contemplate an impossible service;

(6) Those where the intention of the parties relative to the principal object of
the contract cannot be ascertained;

(7) Those expressly prohibited or declared void by law.

For violating the above provision, the contract between the DPWH and private
respondent China Road & Bridge Corporation is allegedly inexistent and void ab initio
and can produce no effects whatsoever.
It is the contention of the petitioners that RA 9184 is applicable to both local- and
foreign-funded procurement contracts. They cite the following excerpt of the
deliberations of the Bicameral Conference Committee on the Disagreeing Provisions
of Senate Bill No. 2248 and House Bill No. 4809:20

REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we
go back to Section 4, Mr. Chairman?

THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition

definition of terms.

REP. ABAYA. Sa House bill, it is sa scope and application.

THE CHAIRMAN (SEN. ANGARA). Okay.

REP. ABAYA. It should read as follows: "This Act shall apply to the procurement of
goods, supplies and materials, infrastructure projects and consulting services
regardless of funding source whether local or foreign by the government."

THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate

accepts it.21

xxx xxx xxx

THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga
problematic yan eh. Now, just for the record Del, can you repeat again the
justification for including foreign funded contracts within the scope para malinaw
because the World Bank daw might raise some objection to it.

REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi
these are the big projects. To give an example, if you allow bids above government
estimate, lets say take the case of 500 million project, included in that 500 million is
the 20 percent profit. If you allow them to bid above government estimate, they will
add another say 28 percent of (sic) 30 percent, 30 percent of 500 million is another
150 million. Ito, this is a rich source of graft money, aregluhan na lang, 150 million,
five contractors will gather, "O eto 20 million, 20 million, 20 million." So, it is rigged.
Yun ang practice na nangyayari. If we eliminate that, if we have a ceiling then, it will
not be very tempting kasi walang extra money na pwedeng ibigay sa ibang contractor.
So this promote (sic) collusion among bidders, of course, with the cooperation of
irresponsible officials of some agencies. So we should have a ceiling to include foreign
funded projects.22
The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the
Philippine Government is neither a treaty, an international nor an executive
agreement that would bar the application of RA 9184. They point out that to be
considered a treaty, an international or an executive agreement, the parties must be
two sovereigns or States whereas in the case of Loan Agreement No. PH-P204, the
parties are the Philippine Government and the JBIC, a banking agency of Japan,
which has a separate juridical personality from the Japanese Government.

They further insist on the applicability of RA 9184 contending that while it took effect
on January 26, 200323 and Loan Agreement No. PH-P204 was executed prior thereto
or on December 28, 1999, the actual procurement or award of the contract to private
respondent China Road & Bridge Corporation was done after the effectivity of RA
9184. The said law is allegedly specific as to its application, which is on the actual
procurement of infrastructure and other projects only, and not on the loan
agreements attached to such projects. Thus, the petition only prays for the annulment
of Resolution No. PJHL-A-04-012 as well as the contract between the DPWH and
private respondent China Road & Bridge Corporation. The petitioners clarify that
they do not pray for the annulment of Loan Agreement No. PH-P204. Since the
subject procurement and award of the contract were done after the effectivity of RA
9184, necessarily, the procurement rules established by that law allegedly apply, and
not Presidential Decree No. 1594 (PD 1594)24 and Executive Order No. 40 (EO 40),
series of 2001, 25 as contended by the respondents. The latter laws, including their
implementing rules, have allegedly been repealed by RA 9184. Even RA 4860, as
amended, known as the Foreign Borrowings Act, the petitioners posit, may have also
been repealed or modified by RA 9184 insofar as its provisions are inconsistent with
the latter.

The petitioners also argue that the "Implementing Rules and Regulations (IRR) of RA
9184, Otherwise Known as the Government Procurement Reform Act, Part A" (IRR-
A) cited by the respondents is not applicable as these rules only govern domestically-
funded procurement contracts. They aver that the implementing rules to govern
foreign-funded procurement, as in the present case, have yet to be drafted and in fact,
there are concurrent resolutions drafted by both houses of Congress for the
Reconvening of the Joint Congressional Oversight Committee for the formulation of
the IRR for foreign-funded procurements under RA 9184.

The petitioners maintain that disbursement of public funds to implement a patently

void and illegal contract is itself illegal and must be enjoined. They bring to the
Courts attention the fact that the works on the CP I project have already commenced
as early as October 2004. They thus urge the Court to issue a writ of certiorari to set
aside Resolution No. PJHL-A-04-012 as well as to declare null and void the contract
entered into between the DPWH and private respondent China Road & Bridge
Corporation. They also pray for the issuance of a temporary restraining order and,
eventually, a writ of prohibition to permanently enjoin the DPWH from
implementing Resolution No. PJHL-A-04-012 and its contract with private
respondent China Road & Bridge Corporation as well as the DBM from disbursing
funds for the said purpose.

The Respondents Counter-Arguments

The public respondents, namely the DPWH, DBM and DOF, and their respective
named officials, through the Office of the Solicitor General, urge the Court to dismiss
the petition on grounds that the petitioners have no locus standi and, in any case,
Resolution No. PJHL-A-04-012 and the contract between the DPWH and private
respondent China Road & Bridge Corporation are valid.

According to the public respondents, a taxpayers locus standi was recognized in the
following cases: (a) where a tax measure is assailed as unconstitutional;26 (b) where
there is a question of validity of election laws;27 (c) where legislators questioned the
validity of any official action upon the claim that it infringes on their prerogatives as
legislators;28 (d) where there is a claim of illegal disbursement or wastage of public
funds through the enforcement of an invalid or unconstitutional law;29 (e) where it
involves the right of members of the Senate or House of Representatives to question
the validity of a presidential veto or condition imposed on an item in an appropriation
bill;30 or (f) where it involves an invalid law, which when enforced will put the
petitioner in imminent danger of sustaining some direct injury as a result thereof, or
that he has been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute complained of.31 None of the above considerations allegedly
obtains in the present case.

It is also the view of the public respondents that the fact that petitioner Abaya was a
former lawmaker would not suffice to confer locus standi on himself. Members of
Congress may properly challenge the validity of an official act of any department of
the government only upon showing that the assailed official act affects or impairs
their rights and prerogatives as legislators.

The public respondents further assail the standing of the petitioners to file the instant
suit claiming that they failed to allege any specific injury suffered nor an interest that is
direct and personal to them. If at all, the interest or injuries claimed by the petitioners
are allegedly merely of a general interest common to all members of the public. Their
interest is allegedly too vague, highly speculative and uncertain to satisfy the
requirements of locus standi.

The public respondents find it noteworthy that the petitioners do not raise issues of
constitutionality but only of contract law, which the petitioners not being privies to
the agreement cannot raise. This is following the principle that a stranger to a contract
cannot sue either or both the contracting parties to annul and set aside the same
except when he is prejudiced on his rights and can show detriment which would
positively result to him from the implementation of the contract in which he has no
intervention. There being no particularized interest or elemental substantial injury
necessary to confer locus standi, the public respondents implore the Court to dismiss
the petition.

On the merits, the public respondents maintain that the imposition of ceilings or
upper limits on bid prices in RA 9184 does not apply because the CP I project and the
entire Catanduanes Circumferential Road Improvement Project, financed by Loan
Agreement No. PH-P204 executed between the Philippine Government and the
JBIC, is governed by the latters Procurement Guidelines which precludes the
imposition of ceilings on bid prices. Section 5.06 of the JBIC Procurement Guidelines
reads:

Section 5.06. Evaluation and Comparison of Bids.

xxx

(e) Any procedure under which bids above or below a predetermined bid value
assessment are automatically disqualified is not permitted.

It was explained that other foreign banks such as the Asian Development Bank
(ADB) and the World Bank (WB) similarly prohibit the bracketing or imposition of a
ceiling on bid prices.

The public respondents stress that it was pursuant to Loan Agreement No. PH-P204
that the assailed Resolution No. PJHL-A-04-012 and the subsequent contract between
the DPWH and private respondent China Road & Bridge Corporation materialized.
They likewise aver that Loan Agreement No. PH-P204 is governed by RA 4860, as
amended, or the Foreign Borrowings Act. Section 4 thereof states:

SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the
President of the Philippines may, when necessary, agree to waive or modify, the
application of any law granting preferences or imposing restrictions on international
competitive bidding, including among others [Act No. 4239, Commonwealth Act No.
138], the provisions of [CA 541], insofar as such provisions do not pertain to
constructions primarily for national defense or security purposes, [RA 5183];
Provided, however, That as far as practicable, utilization of the services of qualified
domestic firms in the prosecution of projects financed under this Act shall be
encouraged: Provided, further, That in case where international competitive bidding
shall be conducted preference of at least fifteen per centum shall be granted in favor
of articles, materials or supplies of the growth, production or manufacture of the
Philippines: Provided, finally, That the method and procedure in comparison of bids
shall be the subject of agreement between the Philippine Government and the lending
institution.

DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it
opined that an agreement for the exclusion of foreign assisted projects from the
coverage of local bidding regulations does not contravene existing legislations because
the statutory basis for foreign loan agreements is RA 4860, as amended, and under
Section 4 thereof, the President is empowered to waive the application of any law
imposing restrictions on the procurement of goods and services pursuant to such
loans.

Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860,
as amended, and PD 1594, relative to the award of foreign-assisted projects, are also
invoked by the public respondents, to wit:

Memorandum Circular No. 104:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended,

otherwise known as the "Foreign Borrowings Act"

xxx

It is hereby clarified that foreign-assisted infrastructure projects may be exempted

from the application for the pertinent provisions of the Implementing Rules and
Regulations (IRR) of Presidential Decree (P.D.) No. 1594 relative to the method and
procedure in the comparison of bids, which matter may be the subject of agreement
between the infrastructure agency concerned and the lending institution. It should be
made clear however that public bidding is still required and can only be waived
pursuant to existing laws.

Memorandum Circular No. 108:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended,

otherwise known as the "Foreign Borrowings Act", it is hereby clarified that, for
projects supported in whole or in part by foreign assistance awarded through
international or local competitive bidding, the government agency concerned may
award the contract to the lowest evaluated bidder at his bid price consistent with the
provisions of the applicable loan/grant agreement.

Specifically, when the loan/grant agreement so stipulates, the government agency

concerned may award the contract to the lowest bidder even if his/its bid exceeds the
approved agency estimate.

It is understood that the concerned government agency shall, as far as practicable,

adhere closely to the implementing rules and regulations of Presidential Decree No.
1594 during loan/grant negotiation and the implementation of the projects.32

The public respondents characterize foreign loan agreements, including Loan

Agreement No. PH-P204, as executive agreements and, as such, should be observed
pursuant to the fundamental principle in international law of pacta sunt
servanda.33 They cite Section 20 of Article VII of the Constitution as giving the
President the authority to contract foreign loans:

SEC. 20. The President may contract or guarantee foreign loans on behalf of the
Republic of the Philippines with the prior concurrence of the Monetary Board, and
subject to such limitations as may be provided by law. The Monetary Board shall,
within thirty days from the end of every quarter of the calendar year, submit to the
Congress a complete report of its decisions on applications for loans to be contracted
or guaranteed by the Government or Government-owned and Controlled
Corporations which would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.

The Constitution, the public respondents emphasize, recognizes the enforceability of

executive agreements in the same way that it recognizes generally accepted principles
of international law as forming part of the law of the land.34 This recognition allegedly
buttresses the binding effect of executive agreements to which the Philippine
Government is a signatory. It is pointed out by the public respondents that executive
agreements are essentially contracts governing the rights and obligations of the
parties. A contract, being the law between the parties, must be faithfully adhered to by
them. Guided by the fundamental rule of pacta sunt servanda, the Philippine
Government bound itself to perform in good faith its duties and obligations under
Loan Agreement No. PH-P204.

The public respondents further argue against the applicability of RA 9184 stating that
it was signed into law on January 10, 2003.35 On the other hand, Loan Agreement No.
PH-P204 was executed on December 28, 1999, where the laws then in force on
government procurements were PD 1594 and EO 40. The latter law (EO 40), in
particular, excluded from its application "any existing and future government
commitments with respect to the bidding and award of contracts financed partly or
wholly with funds from international financing institutions as well as from bilateral
and other similar foreign sources."

The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the
"Invitation to Prequalify and to Bid" for the implementation of the CP I project was
published in two leading national newspapers, namely, the Manila Times and Manila
Standard on November 22, 29 and December 5, 2002, or before the signing into law
of RA 9184 on January 10, 2003. In this connection, the public respondents point to
Section 77 of IRR-A, which reads:

SEC. 77. Transitory Clause.

In all procurement activities, if the advertisement or invitation for bids was issued
prior to the effectivity of the Act, the provisions of EO 40 and its IRR, PD 1594 and
its IRR, RA 7160 and its IRR, or other applicable laws as the case may be, shall
govern.

In cases where the advertisements or invitations for bids were issued after the
effectivity of the Act but before the effectivity of this IRR-A, procuring entities may
continue adopting the procurement procedures, rules and regulations provided in EO
40 and its IRR, or other applicable laws, as the case may be.

Section 4 of RA 9184 is also invoked by the public respondents as it provides:

SEC. 4. Scope and Applications. This Act shall apply to the Procurement of
Infrastructure Projects, Goods and Consulting Services, regardless of source of funds,
whether local or foreign, by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned and/or controlled
corporations and local government units, subject to the provisions of Commonwealth
Act No. 138. Any treaty or international or executive agreement affecting the subject
matter of this Act to which the Philippine government is a signatory shall be
observed.

It is also the position of the public respondents that even granting arguendo that Loan
Agreement No. PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable
under the non-impairment clause36 of the Constitution. The said loan agreement
expressly provided that the procurement of goods and services for the project
financed by the same shall be governed by the Guidelines for Procurement under
OECF Loans dated December 1997. Further, Section 5.06 of the JBIC Procurement
Guidelines categorically provides that "[a]ny procedure under which bids above or
below a predetermined bid value assessment are automatically disqualified is not
permitted."

The public respondents explain that since the contract is the law between the parties
and Loan Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall
govern the parties relationship and further dictates that there be no ceiling price for
the bidding, it naturally follows that any subsequent law passed contrary to the letters
of the said contract would have no effect with respect to the parties rights and
obligations arising therefrom.

To insist on the application of RA 9184 on the bidding for the CP I project would,
notwithstanding the terms and conditions of Loan Agreement No. PH-P204, allegedly
violate the constitutional provision on non-impairment of obligations and contracts,
and destroy vested rights duly acquired under the said loan agreement.

Lastly, the public respondents deny that there was illegal disbursement of public funds
by the DBM. They asseverate that all the releases made by the DBM for the
implementation of the entire Arterial Road Links Project Phase IV, which includes
the Catanduanes Circumferential Road Improvement Project, were covered by the
necessary appropriations made by law, specifically the General Appropriations Act
(GAA). Further, the requirements and procedures prescribed for the release of the
said funds were duly complied with.

For its part, private respondent China Road & Bridge Corporation similarly assails the
standing of the petitioners, either as taxpayers or, in the case of petitioner Abaya, as a
former lawmaker, to file the present suit. In addition, it is also alleged that, by filing
the petition directly to this Court, the petitioners failed to observe the hierarchy of
courts.

On the merits, private respondent China Road & Bridge Corporation asserts that the
applicable law to govern the bidding of the CP I project was EO 40, not RA 9184,
because the former was the law governing the procurement of government projects at
the time that it was bidded out. EO 40 was issued by the Office of the President on
October 8, 2001 and Section 1 thereof states that:

SEC. 1. Scope and Application. This Executive Order shall apply to the procurement
of: (a) goods, supplies, materials and related services; (b) civil works; and (c)
consulting services, by all National Government agencies, including State Universities
and Colleges (SUCs), Government-Owned or Controlled Corporations (GOCCs) and
Government Financial Institutions (GFIs), hereby referred to as the Agencies. This
Executive Order shall cover the procurement process from the pre-procurement
conference up to the award of contract.

xxx

The Invitation to Prequalify and to Bid was first published on November 22, 2002.
On the other hand, RA 9184 was signed into law only on January 10, 2003. Since the
law in effect at the time the procurement process was initiated was EO 40, private
respondent China Road & Bridge Corporation submits that it should be the said law
which should govern the entire procurement process relative to the CP I project.

EO 40 expressly recognizes as an exception from the application of the provisions

thereof on approved budget ceilings, those projects financed by international
financing institutions (IFIs) and foreign bilateral sources. Section 1 thereof, quoted in
part earlier, further states:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments
with respect to the bidding and award of contracts financed partly or wholly with
funds from international financing institutions as well as from bilateral and other
similar foreign sources.

Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked

as it provides:

For procurement financed wholly or partly from Official Development Assistance

(ODA) funds from International Financing Institutions (IFIs), as well as from
bilateral and other similar foreign sources, the corresponding loan/grant agreement
governing said funds as negotiated and agreed upon by and between the Government
and the concerned IFI shall be observed.

Private respondent China Road & Bridge Corporation thus postulates that following
EO 40, the procurement of goods and services for the CP I project should be
governed by the terms and conditions of Loan Agreement No. PH-P204 entered into
between the JBIC and the Philippine Government. Pertinently, Section 5.06 of the
JBIC Procurement Guidelines prohibits the setting of ceilings on bid prices.

Private respondent China Road & Bridge Corporation claims that when it submitted
its bid for the CP I project, it relied in good faith on the provisions of EO 40. It was
allegedly on the basis of the said law that the DPWH awarded the project to private
respondent China Road & Bridge Coporation even if its bid was higher than the ABC.
Under the circumstances, RA 9184 could not be applied retroactively for to do so
would allegedly impair the vested rights of private respondent China Road & Bridge
Corporation arising from its contract with the DPWH.

It is also contended by private respondent China Road & Bridge Corporation that
even assuming arguendo that RA 9184 could be applied retroactively, it is still the
terms of Loan Agreement No. PH-P204 which should govern the procurement of
goods and services for the CP I project. It supports its theory by characterizing the
said loan agreement, executed pursuant to the Exchange of Notes between the
Government of Japan and the Philippine Government, as an executive agreement.

Private respondent China Road & Bridge Corporation, like the public respondents,
cites RA 4860 as the basis for the Exchange of Notes and Loan Agreement No. PH-
P204. As an international or executive agreement, the Exchange of Notes and Loan
Agreement No. PH-P204 allegedly created a legally binding obligation on the parties.

The following excerpt of the deliberations of the Bicameral Conference Committee

on the Disagreeing Provision of Senate Bill No. 2248 and House Bill No. 4809 is cited
by private respondent China Road & Bridge Corporation to support its contention
that it is the intent of the lawmakers to exclude from the application of RA 9184
those foreign-funded projects:

xxx

REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a
justification for the inclusion of foreign contracts, may we just state that foreign
contracts have, of course, been brought into the ambit of the law because of the
Filipino counterpart for this foreign projects, they are no longer strictly foreign in
nature but fall under the laws of the Philippine government.

THE CHAIRMAN (SEN. ANGARA). Okay. I think thats pretty clear. I think the
possible concern is that some ODA are with strings attached especially the Japanese.
The Japanese are quite strict about that, that they are (sic) even provide the architect
and the design, etcetera, plus, of course, the goods that will be supplied.

Now, I think weve already provided that this is open to all and we will recognize our
international agreements so that this bill will not also restrict the flow of foreign
funding, because some countries now make it a condition that they supply both
services and goods especially the Japanese.
So I think we can put a sentence that we continue to honor our international
obligations, di ba Laura?

MR. ENCARNACION. Actually, subject to any treaty.

THE CHAIRMAN (SEN. ANGARA). Yun pala eh. That should allay their anxiety
and concern. Okay, buti na lang for the record para malaman nila na we are conscious
sa ODA.37

Private respondent China Road & Bridge Corporation submits that based on the
provisions of the Exchange of Notes and Loan Agreement No. PH-P204, it was
rightfully and legally awarded the CP I project. It urges the Court to dismiss the
petition for lack of merit.

The Courts Rulings

Petitioners, as taxpayers, possess locus standi to file the present suit

Briefly stated, locus standi is "a right of appearance in a court of justice on a given
question."38 More particularly, it is a partys personal and substantial interest in a case
such that he has sustained or will sustain direct injury as a result of the governmental
act being challenged. It calls for more than just a generalized grievance. The term
"interest" means a material interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental
interest.39 Standing or locus standi is a peculiar concept in constitutional law40 and the
rationale for requiring a party who challenges the constitutionality of a statute to allege
such a personal stake in the outcome of the controversy is "to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."41

Locus standi, however, is merely a matter of procedure42 and it has been recognized
that in some cases, suits are not brought by parties who have been personally injured
by the operation of a law or any other government act but by concerned citizens,
taxpayers or voters who actually sue in the public interest.43 Consequently, the Court,
in a catena of cases,44 has invariably adopted a liberal stance on locus standi, including
those cases involving taxpayers.

The prevailing doctrine in taxpayers suits is to allow taxpayers to question contracts

entered into by the national government or government- owned or controlled
corporations allegedly in contravention of law.45 A taxpayer is allowed to sue where
there is a claim that public funds are illegally disbursed, or that public money is being
deflected to any improper purpose, or that there is a wastage of public funds through
the enforcement of an invalid or unconstitutional law.46 Significantly, a taxpayer need
not be a party to the contract to challenge its validity.47

In the present case, the petitioners are suing as taxpayers. They have sufficiently
demonstrated that, notwithstanding the fact that the CP I project is primarily financed
from loans obtained by the government from the JBIC, nonetheless, taxpayers money
would be or is being spent on the project considering that the Philippine Government
is required to allocate a peso-counterpart therefor. The public respondents themselves
admit that appropriations for these foreign-assisted projects in the GAA are
composed of the loan proceeds and the peso-counterpart. The counterpart funds, the
Solicitor General explains, refer to the component of the project cost to be financed
from government-appropriated funds, as part of the governments commitment in the
implementation of the project.48 Hence, the petitioners correctly asserted their
standing since a part of the funds being utilized in the implementation of the CP I
project partakes of taxpayers money.

Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184
applies to the CP I project, in particular, and to foreign-funded government projects,
in general, and the fact that public interest is indubitably involved considering the
public expenditure of millions of pesos, warrant the Court to adopt in the present
case its liberal policy on locus standi.

In any case, for reasons which will be discussed shortly, the substantive arguments
raised by the petitioners fail to persuade the Court as it holds that Resolution No.
PJHL-A-04-012 is valid. As a corollary, the subsequent contract entered into by and
between the DPWH and private respondent China Road & Bridge Corporation is
likewise valid.

History of Philippine Procurement Laws

It is necessary, at this point, to give a brief history of Philippine laws pertaining to

procurement through public bidding. The United States Philippine Commission
introduced the American practice of public bidding through Act No. 22, enacted on
October 15, 1900, by requiring the Chief Engineer, United States Army for the
Division of the Philippine Islands, acting as purchasing agent under the control of the
then Military Governor, to advertise and call for a competitive bidding for the
purchase of the necessary materials and lands to be used for the construction of
highways and bridges in the Philippine Islands.49 Act No. 74, enacted on January 21,
1901 by the Philippine Commission, required the General Superintendent of Public
Instruction to purchase office supplies through competitive public bidding.50 Act No.
82, approved on January 31, 1901, and Act No. 83, approved on February 6, 1901,
required the municipal and provincial governments, respectively, to hold competitive
public biddings in the making of contracts for public works and the purchase of office
supplies.51

On June 21, 1901, the Philippine Commission, through Act No. 146, created the
Bureau of Supply and with its creation, public bidding became a popular policy in the
purchase of supplies, materials and equipment for the use of the national government,
its subdivisions and instrumentalities.52 On February 3, 1936, then President Manuel
L. Quezon issued Executive Order No. 16 declaring as a matter of general policy that
government contracts for public service or for furnishing supplies, materials and
equipment to the government should be subjected to public bidding.53 The
requirement of public bidding was likewise imposed for public works of construction
or repair pursuant to the Revised Administrative Code of 1917.

Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963,
reiterated the directive that no government contract for public service or for
furnishing supplies, materials and equipment to the government or any of its
branches, agencies or instrumentalities, should be entered into without public bidding
except for very extraordinary reasons to be determined by a Committee constituted
thereunder. Then President Ferdinand Marcos issued PD 1594 prescribing guidelines
for government infrastructure projects and Section 454 thereof stated that they should
generally be undertaken by contract after competitive public bidding.

Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing
guidelines for government negotiated contracts. Pertinently, Section 62 of the
Administrative Code of 1987 reiterated the requirement of competitive public bidding
in government projects. In 1990, Congress passed RA 6957,55 which authorized the
financing, construction, operation and maintenance of infrastructure by the private
sector. RA 7160 was likewise enacted by Congress in 1991 and it contains provisions
governing the procurement of goods and locally-funded civil works by the local
government units.

Then President Fidel Ramos issued Executive Order No. 302 (1996), providing
guidelines for the procurement of goods and supplies by the national government.
Then President Joseph Ejercito Estrada issued Executive Order No. 201 (2000),
providing additional guidelines in the procurement of goods and supplies by the
national government. Thereafter, he issued Executive Order No. 262 (2000) amending
EO 302 (1996) and EO 201 (2000).

On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law

mainly relied upon by the respondents, entitled Consolidating Procurement Rules and
Procedures for All National Government Agencies, Government-Owned or
Controlled Corporations and Government Financial Institutions, and Requiring the
Use of the Government Procurement System. It accordingly repealed, amended or
modified all executive issuances, orders, rules and regulations or parts thereof
inconsistent therewith.56

On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on
January 26, 2004, or fifteen days after its publication in two newspapers of general
circulation.57 It expressly repealed, among others, EO 40, EO 262 (2000), EO
302(1996) and PD 1594, as amended:

SEC. 76. Repealing Clause. This law repeals Executive Order No. 40, series of
2001, entitled "Consolidating Procurement Rules and Procedures for All National
Government Agencies, Government Owned or Controlled Corporations and/or
Government Financial Institutions, and Requiring the Use of the Government
Electronic Procurement System"; Executive Order No. 262, series of 1996, entitled
"Amending Executive Order No. 302, series of 1996, entitled Providing Policies,
Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the
National Government" and Section 3 of Executive Order No. 201, series of 2000,
entitled "Providing Additional Policies and Guidelines in the Procurement of
Goods/Supplies by the National Government"; Executive Order No. 302, series of
1996, entitled "Providing Policies, Guidelines, Rules and Regulations for the
Procurement of Goods/Supplies by the National Government" and Presidential
Decree No. 1594 dated June 11, 1978, entitled "Prescribing Policies, Guidelines, Rules
and Regulations for Government Infrastructure Contracts." This law amends Title
Six, Book Two of Republic Act No. 7160, otherwise known as the "Local
Government Code of 1991"; the relevant provisions of Executive Order No. 164,
series of 1987, entitled "Providing Additional Guidelines in the Processing and
Approval of Contracts of the National Government"; and the relevant provisions of
Republic Act No. 7898 dated February 23, 1995, entitled "An Act Providing for the
Modernization of the Armed Forces of the Philippines and for Other Purposes." Any
other law, presidential decree or issuance, executive order, letter of instruction,
administrative order, proclamation, charter, rule or regulation and/or parts thereof
contrary to or inconsistent with the provisions of this Act is hereby repealed,
modified or amended accordingly.

In addition to these laws, RA 4860, as amended, must be mentioned as Section 4

thereof provides that "[i]n the contracting of any loan, credit or indebtedness under
this Act, the President of the Philippines may, when necessary, agree to waive or
modify the application of any law granting preferences or imposing restrictions on
international competitive bidding x x x Provided, finally, That the method and
procedure in the comparison of bids shall be the subject of agreement between the
Philippine Government and the lending institution."

EO 40, not RA 9184, is applicable to the procurement

process undertaken for the CP I project. RA 9184

cannot be given retroactive application.

It is not disputed that with respect to the CP I project, the Invitation to Prequalify
and to Bid for its implementation was published in two leading national newspapers,
namely, the Manila Times and Manila Standard on November 22, 29 and December 5,
2002. At the time, the law in effect was EO 40. On the other hand, RA 9184 took
effect two months later or on January 26, 2003. Further, its full implementation was
even delayed as IRR-A was only approved by President Arroyo on September 18,
2003 and subsequently published on September 23, 2003 in the Manila Times and
Malaya newspapers.58

The provisions of EO 40 apply to the procurement process pertaining to the CP I

project as it is explicitly provided in Section 1 thereof that:

SEC. 1. Scope and Application. This Executive Order shall apply to see
procurement of (a) goods, supplies, materials and related service; (b) civil works; and
(c) consulting services, by all National Government agencies, including State
Universities and Colleges (SUCs), Government-Owned or Controlled Corporations
(GOCCs) and Government Financial Institutions (GFIs), hereby referred to as
"Agencies." This Executive Order shall cover the procurement process from the pre-
procurement conference up to the award of the contract.

Nothing in this Order shall negate any existing and future government commitments
with respect to the bidding and award of contracts financed partly or wholly with
funds from international financing institutions as well as from bilateral and similar
foreign sources.

The procurement process basically involves the following steps: (1) pre-procurement
conference; (2) advertisement of the invitation to bid; (3) pre-bid conference; (4)
eligibility check of prospective bidders; (5) submission and receipt of bids; (6)
modification and withdrawal of bids; (7) bid opening and examination; (8) bid
evaluation; (9) post qualification; (10) award of contract and notice to
proceed.59 Clearly then, when the Invitation to Prequalify and to Bid for the
implementation of the CP I project was published on November 22, 29 and
December 5, 2002, the procurement process thereof had already commenced and the
application of EO 40 to the procurement process for the CP I project had already
attached.

RA 9184 cannot be applied retroactively to govern the procurement process relative

to the CP I project because it is well settled that a law or regulation has no retroactive
application unless it expressly provides for retroactivity.60Indeed, Article 4 of the Civil
Code is clear on the matter: "[l]aws shall have no retroactive effect, unless the
contrary is provided." In the absence of such categorical provision, RA 9184 will not
be applied retroactively to the CP I project whose procurement process commenced
even before the said law took effect.

That the legislators did not intend RA 9184 to have retroactive effect could be
gleaned from the IRR-A formulated by the Joint Congressional Oversight Committee
(composed of the Chairman of the Senate Committee on Constitutional Amendments
and Revision of Laws, and two members thereof appointed by the Senate President
and the Chairman of the House Committee on Appropriations, and two members
thereof appointed by the Speaker of the House of Representatives) and the
Government Procurement Policy Board (GPPB). Section 77 of the IRR-A states,
thus:

SEC. 77. Transitory Clause

In all procurement activities, if the advertisement or invitation for bids was issued
prior to the effectivity of the Act, the provisions of E.O. 40 and its IRR, P.D. 1594
and its IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be, shall
govern.

In cases where the advertisements or invitations for bids were issued after the
effectivity of the Act but before the effectivity of this IRR-A, procuring entities may
continue adopting the procurement procedures, rules and regulations provided in
E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its IRR, or other
applicable laws, as the case may be.

In other words, under IRR-A, if the advertisement of the invitation for bids was
issued prior to the effectivity of RA 9184, such as in the case of the CP I project, the
provisions of EO 40 and its IRR, and PD 1594 and its IRR in the case of national
government agencies, and RA 7160 and its IRR in the case of local government units,
shall govern.

Admittedly, IRR-A covers only fully domestically-funded procurement activities from

procurement planning up to contract implementation and that it is expressly stated
that IRR-B for foreign-funded procurement activities shall be subject of a subsequent
issuance.61 Nonetheless, there is no reason why the policy behind Section 77 of IRR-A
cannot be applied to foreign-funded procurement projects like the CP I project.
Stated differently, the policy on the prospective or non-retroactive application of RA
9184 with respect to domestically-funded procurement projects cannot be any
different with respect to foreign-funded procurement projects like the CP I project. It
would be incongruous, even absurd, to provide for the prospective application of RA
9184 with respect to domestically-funded procurement projects and, on the other
hand, as urged by the petitioners, apply RA 9184 retroactively with respect to foreign-
funded procurement projects. To be sure, the lawmakers could not have intended
such an absurdity.

Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the

fundamental rule embodied in Article 4 of the Civil Code on prospectivity of laws, the
Court holds that the procurement process for the implementation of the CP I project
is governed by EO 40 and its IRR, not RA 9184.

Under EO 40, the award of the contract to private

respondent China Road & Bridge Corporation is valid

Section 25 of EO 40 provides that "[t]he approved budget of the contract shall be the
upper limit or ceiling of the bid price. Bid prices which exceed this ceiling shall be
disqualified outright from further participating in the bidding. There shall be no lower
limit to the amount of the award. x x x" It should be observed that this text is almost
similar to the wording of Section 31 of RA 9184, relied upon by the petitioners in
contending that since the bid price of private respondent China Road & Bridge
Corporation exceeded the ABC, then it should not have been awarded the contract
for the CP I project.

Nonetheless, EO 40 expressly recognizes as an exception to its scope and application

those government commitments with respect to bidding and award of contracts
financed partly or wholly with funds from international financing institutions as well
as from bilateral and other similar foreign sources. The pertinent portion of Section 1
of EO 40 is quoted anew:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments
with respect to the bidding and award of contracts financed partly or wholly with
funds from international financing institutions as well as from bilateral and similar
foreign sources.

In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the

respondents as likewise authorizing the President, in the contracting of any loan,
credit or indebtedness thereunder, "when necessary, agree to waive or modify the
application of any law granting preferences or imposing restrictions on international
competitive bidding x x x." The said provision of law further provides that "the
method and procedure in the comparison of bids shall be the subject of agreement
between the Philippine Government and the lending institution."

Consequently, in accordance with these applicable laws, the procurement of goods

and services for the CP I project is governed by the corresponding loan agreement
entered into by the government and the JBIC, i.e., Loan Agreement No. PH-P204.
The said loan agreement stipulated that the procurement of goods and services for the
Arterial Road Links Development Project (Phase IV), of which CP I is a component,
is to be governed by the JBIC Procurement Guidelines. Section 5.06, Part II
(International Competitive Bidding) thereof quoted earlier reads:

Section 5.06. Evaluation and Comparison of Bids

xxx

(e) Any procedure under which bids above or below a predetermined bid value
assessment are automatically disqualified is not permitted.62

It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings
on bid prices. On the other hand, it enjoins the award of the contract to the bidder
whose bid has been determined to be the lowest evaluated bid. The pertinent
provision, quoted earlier, is reiterated, thus:

Section 5.09. Award of Contract

The contract is to be awarded to the bidder whose bid has been determined to be the
lowest evaluated bid and who meets the appropriate standards of capability and
financial resources. A bidder shall not be required as a condition of award to
undertake responsibilities or work not stipulated in the specifications or to modify the
bid.63

Since these terms and conditions are made part of Loan Agreement No. PH-P204, the
government is obliged to observe and enforce the same in the procurement of goods
and services for the CP I project. As shown earlier, private respondent China Road &
Bridge Corporations bid was the lowest evaluated bid, albeit 28.95% higher than the
ABC. In accordance with the JBIC Procurement Guidelines, therefore, it was
correctly awarded the contract for the CP I project.

Even if RA 9184 were to be applied retroactively, the terms of the Exchange of Notes
dated December 27, 1999 and Loan Agreement No. PH-P204 would still govern the
procurement for the CP I project

For clarity, Section 4 of RA 9184 is quoted anew, thus:

SEC. 4. Scope and Applications. This Act shall apply to the Procurement of
Infrastructure Projects, Goods and Consulting Services, regardless of source of funds,
whether local or foreign, by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned and/or controlled
corporations and local government units, subject to the provisions of Commonwealth
Act No. 138. Any treaty or international or executive agreement affecting the subject
matter of this Act to which the Philippine government is a signatory shall be
observed.

The petitioners, in order to place the procurement process undertaken for the CP I
project within the ambit of RA 9184, vigorously assert that Loan Agreement No. PH-
P204 is neither a treaty, an international agreement nor an executive agreement. They
cite Executive Order No. 459 dated November 25, 1997 where the three agreements
are defined in this wise:

a) International agreement shall refer to a contract or understanding,

regardless of nomenclature, entered into between the Philippines and another
government in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments.

b) Treaties international agreements entered into by the Philippines which

require legislative concurrence after executive ratification. This term may
include compacts like conventions, declarations, covenants and acts.

c) Executive agreements similar to treaties except that they do not require

legislative concurrence.64

The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under
any of the three categories because to be any of the three, an agreement had to be one
where the parties are the Philippines as a State and another State. The JBIC, the
petitioners maintain, is a Japanese banking agency, which presumably has a separate
juridical personality from the Japanese Government.
The petitioners arguments fail to persuade. The Court holds that Loan Agreement
No. PH-P204 taken in conjunction with the Exchange of Notes dated December 27,
1999 between the Japanese Government and the Philippine Government is an
executive agreement.

To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and
the Philippine Government pursuant to the Exchange of Notes executed by and
between Mr. Yoshihisa Ara, Ambassador Extraordinary and Plenipotentiary of Japan
to the Philippines, and then Foreign Affairs Secretary Siazon, in behalf of their
respective governments. The Exchange of Notes expressed that the two governments
have reached an understanding concerning Japanese loans to be extended to the
Philippines and that these loans were aimed at promoting our countrys economic
stabilization and development efforts.

Loan Agreement No. PH-P204 was subsequently executed and it declared that it was
so entered by the parties "[i]n the light of the contents of the Exchange of Notes
between the Government of Japan and the Government of the Republic of the
Philippines dated December 27, 1999, concerning Japanese loans to be extended with
a view to promoting the economic stabilization and development efforts of the
Republic of the Philippines."65 Under the circumstances, the JBIC may well be
considered an adjunct of the Japanese Government. Further, Loan Agreement No.
PH-P204 is indubitably an integral part of the Exchange of Notes. It forms part of the
Exchange of Notes such that it cannot be properly taken independent thereof.

In this connection, it is well to understand the definition of an "exchange of notes"

under international law. The term is defined in the United Nations Treaty Collection
in this wise:

An "exchange of notes" is a record of a routine agreement that has many similarities

with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats the
text of the offering State to record its assent. The signatories of the letters may be
government Ministers, diplomats or departmental heads. The technique of exchange
of notes is frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval.66

It is stated that "treaties, agreements, conventions, charters, protocols, declarations,

memoranda of understanding, modus vivendi and exchange of notes" all refer to
"international instruments binding at international law."67 It is further explained that-
Although these instruments differ from each other by title, they all have common
features and international law has applied basically the same rules to all these
instruments. These rules are the result of long practice among the States, which have
accepted them as binding norms in their mutual relations. Therefore, they are
regarded as international customary law. Since there was a general desire to codify
these customary rules, two international conventions were negotiated. The 1969
Vienna Convention on the Law of Treaties ("1969 Vienna Convention"), which
entered into force on 27 January 1980, contains rules for treaties concluded between
States. The 1986 Vienna Convention on the Law of Treaties between States and
International Organizations ("1986 Vienna Convention"), which has still not entered
into force, added rules for treaties with international organizations as parties. Both the
1969 Vienna Convention and the 1986 Vienna Convention do not distinguish
between the different designations of these instruments. Instead, their rules apply to
all of those instruments as long as they meet the common requirements.68

Significantly, an exchange of notes is considered a form of an executive agreement,

which becomes binding through executive action without the need of a vote by the
Senate or Congress. The following disquisition by Francis B. Sayre, former United
States High Commissioner to the Philippines, entitled "The Constitutionality of Trade
Agreement Acts," quoted in Commissioner of Customs v. Eastern Sea Trading,69 is
apropos:

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

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

3. The Government of the Republic of the Philippines will ensure that the products
and/or services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-
paragraph (1) of paragraph 4 of Part II are procured in accordance with the guidelines
for procurement of the Bank, which set forth, inter alia, the procedures of
international tendering to be followed except where such procedures are inapplicable
or inappropriate.72

The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under
which bids above or below a predetermined bid value assessment are automatically
disqualified. Succinctly put, it absolutely prohibits the imposition of ceilings on bids.

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

WHEREFORE, premises considered, the petition is DISMISSED.

SO ORDERED.
 EN BANC

THE PROVINCE OF NORTH COTABATO, G.R. No. 183591

duly represented by GOVERNOR JESUS Present:
SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIOL, for and in his own behalf, PUNO, C.J.,
Petitioners, QUISUMBING,
YNARES-
- versus - SANTIAGO,
CARPIO,
AUSTRIA-
THE GOVERNMENT OF THE REPUBLIC OF MARTINEZ,
THE PHILIPPINES PEACE PANEL ON CORONA,
ANCESTRAL DOMAIN (GRP), represented by CARPIO
SEC. RODOLFO GARCIA, ATTY. LEAH MORALES,
ARMAMENTO, ATTY. SEDFREY AZCUNA,
CANDELARIA, MARK RYAN SULLIVAN TINGA,
and/or GEN. HERMOGENES ESPERON, JR., CHICO-
the latter in his capacity as the present and duly- NAZARIO,
appointed Presidential Adviser on the Peace VELASCO, JR.,
Process (OPAPP) or the so-called Office of the NACHURA,
Presidential Adviser on the Peace Process, REYES,
Respondents. LEONARDO-DE
x--------------------------------------------x CASTRO, &
CITY GOVERNMENT OF ZAMBOANGA, as BRION, JJ.
represented by HON. CELSO L. LOBREGAT, Promulgated:
City Mayor of Zamboanga, and in his personal
capacity as resident of the City of Zamboanga, October 14, 2008
Rep. MA. ISABELLE G. CLIMACO, District 1,
and Rep. ERICO BASILIO A. FABIAN, District 2,
City of Zamboanga,
Petitioners,

- versus -
G.R. No. 183752

THE GOVERNMENT OF THE REPUBLIC OF

THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C.
GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as
the Presidential Adviser on Peace Process,
Respondents.
x--------------------------------------------x
THE CITY OF ILIGAN, duly represented by
CITY MAYOR LAWRENCE LLUCH CRUZ,
Petitioner,

- versus

THE GOVERNMENT OF THE REPUBLIC OF

THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY
CANDELARIA, MARK RYAN SULLIVAN;
GEN. HERMOGENES ESPERON, JR., in his
capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or
SEC. EDUARDO ERMITA, in his capacity as
Executive Secretary. G.R. No. 183893
Respondents.
x--------------------------------------------x
THE PROVINCIAL GOVERNMENT OF
ZAMBOANGA DEL NORTE, as represented by
HON. ROLANDO E. YEBES, in his capacity as
Provincial Governor, HON. FRANCIS H. OLVIS,
in his capacity as Vice-Governor and Presiding
Officer of the Sangguniang Panlalawigan, HON.
CECILIA JALOSJOS CARREON,
Congresswoman, 1st Congressional District, HON.
CESAR G. JALOSJOS, Congressman,
rd
3 Congressional District, and Members of the
Sangguniang Panlalawigan of the Province of
Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO
R. CABIGON, JR., HON. ULDARICO M.
MEJORADA II, HON. EDIONAR M.
ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON. FELIXBERTO
C. BOLANDO, HON. JOSEPH BRENDO C.
AJERO, HON. NORBIDEIRI B. EDDING,
HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON.
LUZVIMINDA E. TORRINO,
Petitioners,
G.R. No. 183951

- versus -

THE GOVERNMENT OF THE REPUBLIC OF

THE PHILIPPINES PEACE NEGOTIATING
PANEL [GRP], as represented by HON.
RODOLFO C. GARCIA and HON.
HERMOGENES ESPERON, in his capacity as
the Presidential Adviser of Peace Process,
Respondents.
x--------------------------------------------x
ERNESTO M. MACEDA, JEJOMAR C. BINAY,
and AQUILINO L. PIMENTEL III,
Petitioners,

- versus -

THE GOVERNMENT OF THE REPUBLIC OF

THE PHILIPPINES PEACE NEGOTIATING
PANEL, represented by its Chairman RODOLFO
C. GARCIA, and the MORO ISLAMIC
LIBERATION FRONT PEACE
NEGOTIATING PANEL, represented by its
Chairman MOHAGHER IQBAL,
Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS
TAMANO,
Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS,
Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly
represented by its Municipal Mayor NOEL N.
DEANO,
Petitioners-in-Intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILANPROVINCE,
represented by MAYOR CHERRYLYN P.
SANTOS-AKBAR,
Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep.
by HON. SUHARTO T. MANGUDADATU, in
his capacity as Provincial Governor and a resident G.R. No. 183962
of the Province of Sultan Kudarat,
Petitioner-in-Intervention.
x-------------------------------------------x

RUY ELIAS LOPEZ, for and in his own behalf

and on behalf of Indigenous Peoples in Mindanao
Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG,
NESARIO G. AWAT, JOSELITO C. ALISUAG
and RICHALEX G. JAGMIS, as citizens and
residents of Palawan,
Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI,
Petitioners-in-Intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE
FOUNDATION, INC (MUSLAF),
Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT
FOR PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process. While the facts surrounding this controversy center on
the armed conflict in Mindanao between the government and the Moro Islamic
Liberation Front (MILF), the legal issue involved has a bearing on all areas in the
country where there has been a long-standing armed conflict. Yet again, the Court is
tasked to perform a delicate balancing act. It must uncompromisingly delineate the
bounds within which the President may lawfully exercise her discretion, but it must do
so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom
of action vested by that same Constitution in the Chief Executive precisely to enable
her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and
the MILF, through the Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-
AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala
Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National
Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others,
of what Salamat perceived to be the manipulation of the MNLF away from an Islamic
basis towards Marxist-Maoist orientations.[1]

The signing of the MOA-AD between the GRP and the MILF was not to materialize,
however, for upon motion of petitioners, specifically those who filed their cases
before the scheduled signing of the MOA-AD, this Court issued a Temporary
Restraining Order enjoining the GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of
several prior agreements between the two parties beginning in 1996, when the GRP-
MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels
signed the Agreement on General Cessation of Hostilities. The following year, they
signed the General Framework of Agreement of Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by

stating that the same contained, among others, the commitment of the parties to
pursue peace negotiations, protect and respect human rights, negotiate with sincerity
in the resolution and pacific settlement of the conflict, and refrain from the use of
threat or force to attain undue advantage while the peace negotiations on the
substantive agenda are on-going.[2]

Early on, however, it was evident that there was not going to be any smooth sailing in
the GRP-MILF peace process.Towards the end of 1999 up to early 2000, the MILF
attacked a number of municipalities in Central Mindanao and, in March 2000, it took
control of the town hall of Kauswagan, Lanao del Norte.[3] In response, then
President Joseph Estrada declared and carried out an all-out-war against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive

against the MILF was suspended and the government sought a resumption of the
peace talks. The MILF, according to a leading MILF member, initially responded with
deep reservation, but when President Arroyo asked the Government of Malaysia
through Prime Minister Mahathir Mohammad to help convince the MILF to return to
the negotiating table, the MILF convened its Central Committee to seriously discuss
the matter and, eventually, decided to meet with the GRP.[4]

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated
by the Malaysian government, the parties signing on the same date the Agreement on
the General Framework for the Resumption of Peace Talks Between the GRP and the
MILF. The MILF thereafter suspended all its military actions.[5]

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22,
2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and agenda on the following aspects
of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect.With regard to the Ancestral Domain Aspect, the parties in Tripoli
Agreement 2001 simply agreed that the same be discussed further by the Parties in
their next meeting.

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7,
2001 which ended with the signing of the Implementing Guidelines on the Security
Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the
parties. This was followed by the Implementing Guidelines on the Humanitarian
Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was
signed on May 7, 2002 at Putrajaya, Malaysia.Nonetheless, there were many incidence
of violence between government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and
he was replaced by Al Haj Murad, who was then the chief peace negotiator of the
MILF. Murads position as chief peace negotiator was taken over by Mohagher Iqbal.[6]

In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious consensus ever embodied in
an instrument the MOA-AD which is assailed principally by the present petitions
bearing docket numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral

Domain[7] and the Presidential Adviser on the Peace Process (PAPP) Hermogenes
Esperon, Jr.

On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor

Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for Mandamus and
Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and
Temporary Restraining Order.[9] Invoking the right to information on matters of
public concern, petitioners seek to compel respondents to disclose and furnish them
the complete and official copies of the MOA-AD including its attachments, and to
prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of
the MOA-AD and the holding of a public consultation thereon. Supplementarily,
petitioners pray that the MOA-AD be declared unconstitutional.[10]

This initial petition was followed by another one, docketed as G.R. No. 183752, also
for Mandamus and Prohibition[11] filed by the City of Zamboanga,[12] Mayor Celso
Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray
for similar injunctive reliefs. Petitioners herein moreover pray that the City
of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro
Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.
 By Resolution of August 4, 2008, the Court issued a Temporary Restraining
Order commanding and directing public respondents and their agents to cease and
desist from formally signing the MOA-AD.[13] The Court also required the Solicitor
General to submit to the Court and petitioners the official copy of the final draft of
the MOA-AD,[14] to which she complied.[15]

Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or

Declaratory Relief, docketed as G.R. No. 183893, praying that respondents be
enjoined from signing the MOA-AD or, if the same had already been signed, from
implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo
Ermita as respondent.

The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, Vice-

Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the
members[18] of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August
15, 2008 a petition for Certiorari, Mandamus and Prohibition,[19] docketed as G.R.
No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and
without operative effect, and that respondents be enjoined from executing the MOA-
AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel
III filed a petition for Prohibition,[20] docketed as G.R. No. 183962, praying for a
judgment prohibiting and permanently enjoining respondents from formally signing
and executing the MOA-AD and or any other agreement derived therefrom or similar
thereto, and nullifying the MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator
Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano,
the City of Isabela[21] and Mayor Cherrylyn Santos-Akbar, the Province of Sultan
Kudarat[22] and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del
Norte,[23] Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato
City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,
Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc.
(Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development
(MMMPD) filed their respective Comments-in-Intervention.
 By subsequent Resolutions, the Court ordered the consolidation of the
petitions. Respondents filed Comments on the petitions, while some of petitioners
submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the
Executive Department shall thoroughly review the MOA-AD and pursue further
negotiations to address the issues hurled against it, and thus moved to dismiss the
cases. In the succeeding exchange of pleadings, respondents motion was met with
vigorous opposition from petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that
tackled the following principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the

disclosure of official copies of the final draft of the
Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government

Units is concerned, if it is considered that consultation has
become fait accompli with the finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;

3. Whether respondent Government of the Republic of the Philippines

Peace Panel committed grave abuse of discretion amounting to lack
or excess of jurisdiction when it negotiated and initiated the MOA
vis--vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the peoples right to information on

matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions involving
public interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160 (LOCAL
GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the

1997 Rules of Civil Procedure is an appropriate remedy;
 5. Whether by signing the MOA, the Government of the Republic of
the Philippines would be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a

separate state, or a juridical, territorial or political subdivision not
recognized by law;

b) to revise or amend the Constitution and existing laws to conform

to the MOA;

c) to concede to or recognize the claim of the Moro Islamic

Liberation Front for ancestral domain in violation of Republic
Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT
OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority

to so bind the Government of the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato,

Cities of Zamboanga, Iligan and Isabela, and the Municipality of
Linamon, Lanao del Norte in/from the areas covered by the
projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of
the Philippines.[24]

The Court, thereafter, ordered the parties to submit their respective

Memoranda. Most of the parties submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject

five petitions and six petitions-in-intervention against the MOA-AD, as well as the
two comments-in-intervention in favor of the MOA-AD, the Court takes an overview
of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.
 Under the heading Terms of Reference (TOR), the MOA-AD includes not
only four earlier agreements between the GRP and MILF, but also two agreements
between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace
Agreement on the Implementation of the 1976 Tripoli Agreement, signed on
September 2, 1996 during the administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)[25] and the Indigenous Peoples
Rights Act (IPRA),[26] and several international law instruments the ILO Convention
No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in
relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN
Charter, among others.

The MOA-AD includes as a final TOR the generic category of compact rights
entrenchment emanating from the regime of dar-ul-muahada (or
territory under compact) and dar-ul-sulh (or territory under peace agreement) that
partakes the nature of a treaty device.

During the height of the Muslim Empire, early Muslim jurists tended to see the world
through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-
ul-harb (the Abode of War). The first referred to those lands where Islamic laws held
sway, while the second denoted those lands where Muslims were persecuted or where
Muslim laws were outlawed or ineffective.[27] This way of viewing the world, however,
became more complex through the centuries as the Islamic world became part of the
international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States
and inter-governmental organizations, the classical division of the world into dar-ul-
Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe
novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-
muahada (land of compact) and dar-ul-sulh (land of treaty) referred to countries which,
though under a secular regime, maintained peaceful and cooperative relations with
Muslim States, having been bound to each other by treaty or agreement. Dar-ul-
aman (land of order), on the other hand, referred to countries which, though not
bound by treaty with Muslim States, maintained freedom of religion for Muslims.[28]

It thus appears that the compact rights entrenchment emanating from the regime
of dar-ul-muahada and dar-ul-sulh simply refers to all other agreements between the
MILF and the Philippine government the Philippines being the land of compact and
peace agreement that partake of the nature of a treaty device, treaty being broadly
defined as any solemn agreement in writing that sets out understandings, obligations,
and benefits for both parties which provides for a framework that elaborates the
principles declared in the [MOA-AD].[29]

The MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED
AS FOLLOWS, and starts with its main body.

The main body of the MOA-AD is divided

into four strands, namely, Concepts and
Principles, Territory, Resources, and
Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
Bangsamoros. It defines Bangsamoro people as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their descendants whether mixed or
of full blood, including their spouses.[30]

Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD, includes
not only Moros as traditionally understood even by Muslims,[31] but
all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that
the freedom of choice of indigenous peoples shall be respected. What this freedom of
choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of

which is vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation.[32] Both parties to the MOA-AD acknowledge that ancestral domain
does not form part of the public domain.[33]

The Bangsamoro people are acknowledged as having the right to self-governance,

which right is said to be rooted on ancestral territoriality exercised originally under the
suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The
sultanates were described as states or karajaan/kadatuan resembling a body politic
endowed with all the elements of a nation-state in the modern sense.[34]

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people
on the past suzerain authority of the sultanates. As gathered, the territory defined as
the Bangsamoro homeland was ruled by several sultanates and, specifically in the case
of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of whom was
supreme over the others.[35]

The MOA-AD goes on to describe the Bangsamoro people as the First Nation with
defined territory and with a system of government having entered into treaties of
amity and commerce with foreign nations.
The term First Nation is of Canadian origin referring to the indigenous peoples of
that territory, particularly those known as Indians. In Canada, each of these
indigenous peoples is equally entitled to be called First Nation, hence, all of them are
usually described collectively by the plural First Nations.[36] To that extent, the MOA-
AD, by identifying the Bangsamoro people as the First Nation suggesting its exclusive
entitlement to that designation departs from the Canadian usage of the term.

The MOA-AD then mentions for the first time the Bangsamoro Juridical
Entity (BJE) to which it grants the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro.[37]

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region.[38]

More specifically, the core of the BJE is defined as the present geographic area of the
ARMM thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu,
Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001
plebiscite.[39]

Outside of this core, the BJE is to cover other provinces, cities, municipalities
and barangays, which are grouped into two categories, Category A and Category
B. Each of these areas is to be subjected to a plebiscite to be held on different dates,
years apart from each other. Thus, Category A areas are to be subjected to a plebiscite
not later than twelve (12) months following the signing of the MOA-AD.[40] Category
B areas, also called Special Intervention Areas, on the other hand, are to be subjected
to a plebiscite twenty-five (25) years from the signing of a separate agreement the
Comprehensive Compact.[41]
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all
natural resources within its internalwaters, defined as extending fifteen (15) kilometers
from the coastline of the BJE area;[42] that the BJE shall also have territorial waters,
which shall stretch beyond the BJE internal waters up to the baselines of the Republic
of the Philippines (RP) south east and south west of mainland Mindanao; and
that within these territorial waters, the BJE and the Central Government (used
interchangeably with RP) shall exercise joint jurisdiction, authority and management
over all natural resources.[43] Notably, the jurisdiction over the internal waters is not similarly
described as joint.

The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through
production sharing and economic cooperation agreement.[44] The activities which the
Parties are allowed to conduct on the territorial waters are enumerated, among which
are the exploration and utilization of natural resources, regulation of shipping and
fishing activities, and the enforcement of police and safety measures. [45] There is no
similar provision on the sharing of minerals and allowed activities with respect to the internal waters
of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and
trade relations with foreign countries and shall have the option to establish trade
missions in those countries. Such relationships and understandings, however, are not
to include aggression against the GRP. The BJE may also enter into environmental
cooperation agreements.[46]

The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to take necessary steps to
ensure the BJEs participation in international meetings and events like those of the
ASEAN and the specialized agencies of the UN. The BJE is to be entitled to
participate in Philippine official missions and delegations for the negotiation of border
agreements or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or between the
islands forming part of the ancestral domain.[47]

With regard to the right of exploring for, producing, and obtaining all potential
sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction
and control thereon is to be vested in the BJE as the party having control within its
territorial jurisdiction. This right carries the proviso that, in times of national
emergency, when public interest so requires, the Central Government may, for a fixed
period and under reasonable terms as may be agreed upon by both Parties, assume or
direct the operation of such resources.[48]

The sharing between the Central Government and the BJE of total production
pertaining to natural resources is to be 75:25 in favor of the BJE.[49]
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising
from any unjust dispossession of their territorial and proprietary rights, customary
land tenures, or their marginalization shall be acknowledged.Whenever restoration is
no longer possible, reparation is to be in such form as mutually determined by the
Parties.[50]

The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements
(MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including those issued by the
present ARMM.[51]

D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to
embody the details for the effective enforcement and the mechanisms and modalities
for the actual implementation of the MOA-AD. The MOA-AD explicitly provides
that the participation of the third party shall not in any way affect the status of the
relationship between the Central Government and the BJE.[52]

The associative relationship

between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the
BJE as associative, characterized by shared authority and responsibility. And it states
that the structure of governance is to be based on executive, legislative, judicial, and
administrative institutions with defined powers and functions in the Comprehensive
Compact.

The MOA-AD provides that its provisions requiring amendments to the existing legal
framework shall take effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact. As will be discussed later, much of the present
controversy hangs on the legality of this provision.
 The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and banking, education,
legislation, legal, economic, police and internal security force, judicial system and
correctional institutions, the details of which shall be discussed in the negotiation of
the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo
Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of
the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD
identifies the signatories as the representatives of the Parties, meaning the GRP and MILF
themselves, and not merely of the negotiating panels.[53] In addition, the signature page of the
MOA-AD states that it is WITNESSED BY Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, ENDORSED BY Ambassador Sayed
Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General
and Special Envoy for Peace Process in Southern Philippines, and SIGNED IN THE
PRESENCE OF Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato
Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom
were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective

lists cum maps of the provinces, municipalities, and barangays under Categories A and
B earlier mentioned in the discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or

controversies.[54] Courts decline to issue advisory opinions or to resolve hypothetical
or feigned problems, or mere academic questions.[55] The limitation of the power of
judicial review to actual cases and controversies defines the role assigned to the
judiciary in a tripartite allocation of power, to assure that the courts will not intrude
into areas committed to the other branches of government.[56]

An actual case or controversy involves a conflict of legal rights, an assertion of

opposite legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute. There must be a contrariety of legal
rights that can be interpreted and enforced on the basis of existing law and
jurisprudence.[57]The Court can decide the constitutionality of an act or treaty only
when a proper case between opposing parties is submitted for judicial
determination.[58]

Related to the requirement of an actual case or controversy is the requirement

of ripeness. A question is ripe for adjudication when the act being challenged has had
a direct adverse effect on the individual challenging it.[59] For a case to be considered
ripe for adjudication, it is a prerequisite that something had then been accomplished
or performed by either branch before a court may come into the picture, [60] and the
petitioner must allege the existence of an immediate or threatened injury to itself as a
result of the challenged action.[61] He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act
complained of.[62]

The Solicitor General argues that there is no justiciable controversy that is ripe
for judicial review in the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points

subject to further negotiations and legislative enactments as well as
constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal that does
not automatically create legally demandable rights and obligations until
the list of operative acts required have been duly complied with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable

Court has no authority to pass upon issues based on hypothetical or
feigned constitutional problems or interests with no concrete
bases. Considering the preliminarycharacter of the MOA-AD, there are
no concrete acts that could possibly violate petitioners and intervenors
rights since the acts complained of are mere contemplated steps toward
the formulation of a final peace agreement. Plainly, petitioners and
intervenors perceived injury, if at all, is merely imaginary and illusory
apart from being unfounded and based on mere
conjectures. (Underscoring supplied)

The Solicitor General cites[63] the following provisions of the MOA-AD:

TERRITORY
 xxxx

2. Toward this end, the Parties enter into the following

stipulations:
xxxx

d. Without derogating from the requirements of prior

agreements, the Government stipulates to conduct and
deliver, using all possible legal measures, within twelve
(12) months following the signing of the MOA-AD, a
plebiscite covering the areas as enumerated in the list
and depicted in the map as Category A attached herein
(the Annex). The Annex constitutes an integral part of
this framework agreement.Toward this end, the Parties
shall endeavor to complete the negotiations and resolve
all outstanding issues on the Comprehensive Compact
within fifteen (15) months from the signing of the
MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable
it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the

existing legal framework shall come into force upon the
signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to
non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive
Compact.[64] (Underscoring supplied)

The Solicitor Generals arguments fail to persuade.

 Concrete acts under the MOA-AD are not necessary to render the present
controversy ripe. In Pimentel, Jr. v. Aguirre,[65] this Court held:

x x x [B]y the mere enactment of the questioned law or the

approval of the challenged action, the dispute is said to have ripened into
a judicial controversy even without any other overt act. Indeed, even a
singular violation of the Constitution and/or the law is enough to
awaken judicial duty.

xxxx

By the same token, when an act of the President, who in our

constitutional scheme is a coequal of Congress, is seriously alleged to
have infringed the Constitution and the laws x x x settling the dispute
becomes the duty and the responsibility of the courts.[66]

In Santa Fe Independent School District v. Doe,[67] the United States Supreme Court
held that the challenge to the constitutionality of the schools policy allowing student-
led prayers and speeches before games was ripe for adjudication, even if no public
prayer had yet been led under the policy, because the policy was being challenged as
unconstitutional on its face.[68]

That the law or act in question is not yet effective does not negate ripeness. For
example, in New York v. United States,[69] decided in 1992, the United States Supreme
Court held that the action by the State of New York challenging the provisions of the
Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the
questioned provision was not to take effect until January 1, 1996, because the parties
agreed that New York had to take immediate action to avoid the provision's
consequences.[70]

The present petitions pray for Certiorari,[71] Prohibition, and

Mandamus. Certiorari and Prohibition are remedies granted by law when any tribunal,
board or officer has acted, in the case of certiorari, or is proceeding, in the case of
prohibition, without or in excess of its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.[72] Mandamus is a remedy granted by law
when any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use or enjoyment of a
right or office to which such other is entitled.[73] Certiorari, Mandamus and
Prohibition are appropriate remedies to raise constitutional issues and to review
and/or prohibit/nullify, when proper, acts of legislative and executive officials. [74]

The authority of the GRP Negotiating Panel is defined by Executive Order No.
3 (E.O. No. 3), issued on February 28, 2001.[75] The said executive order requires that
[t]he government's policy framework for peace, including the systematic approach and
the administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order.[76]

The present petitions allege that respondents GRP Panel and PAPP Esperon
drafted the terms of the MOA-AD without consulting the local government units or
communities affected, nor informing them of the proceedings. As will be discussed in
greater detail later, such omission, by itself, constitutes a departure by respondents from
their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate
the Constitution. The MOA-AD provides that any provisions of the MOA-AD
requiring amendments to the existing legal framework shall come into force upon the
signing of a Comprehensive Compact and upon effecting the necessary changes to the
legal framework, implying an amendment of the Constitution to accommodate the
MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its authority.Again, these points will be
discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed
their authority, by violating their duties under E.O. No. 3 and the provisions of the
Constitution and statutes, the petitions make a prima facie case for Certiorari,
Prohibition, and Mandamus, and an actual case or controversy ripe for
adjudication exists. When an act of a branch of government is seriously alleged
to have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute.[77]

B. LOCUS STANDI

For a party to have locus standi, one must allege such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.[78]
Because constitutional cases are often public actions in which the relief sought is likely
to affect other persons, a preliminary question frequently arises as to this interest in
the constitutional question raised.[79]

When suing as a citizen, the person complaining must allege that he has been or is
about to be denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute or act
complained of.[80] When the issue concerns a public right, it is sufficient that the
petitioner is a citizen and has an interest in the execution of the laws.[81]

For a taxpayer, one is allowed to sue where there is an assertion that public funds are
illegally disbursed or deflected to an illegal purpose, or that there is a wastage of
public funds through the enforcement of an invalid or unconstitutional law. [82] The
Court retains discretion whether or not to allow a taxpayers suit.[83]

In the case of a legislator or member of Congress, an act of the Executive that injures the
institution of Congress causes a derivative but nonetheless substantial injury that can
be questioned by legislators. A member of the House of Representatives has standing
to maintain inviolate the prerogatives, powers and privileges vested by the
Constitution in his office.[84]

An organization may be granted standing to assert the rights of its members,[85] but the
mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of
the duty to preserve the rule of law does not suffice to clothe it with standing.[86]

As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs.[87]

Intervenors, meanwhile, may be given legal standing upon showing of facts that
satisfy the requirements of the law authorizing intervention,[88] such as a legal interest
in the matter in litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus
standi, given the liberal attitude it has exercised, highlighted in the case of David v.
Macapagal-Arroyo,[89] where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of transcendental
importance deserving the attention of the Court in view of their seriousness, novelty
and weight as precedents.[90] The Courts forbearing stance on locus standi on issues
involving constitutional issues has for its purpose the protection of fundamental
rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves within
the limits of the Constitution and the laws and have not abused the discretion given
them, has brushed aside technical rules of procedure.[91]

In the petitions at bar, petitioners Province of North Cotabato (G.R. No.

183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and
petitioners-in-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in view of the direct and
substantial injury that they, as LGUs, would suffer as their territories, whether in
whole or in part, are to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in the ARMM which would
be expanded to form the BJE territory. Petitioners legal standing is thus beyond
doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino
Pimentel III would have no standing as citizens and taxpayers for their failure to
specify that they would be denied some right or privilege or there would be wastage of
public funds. The fact that they are a former Senator, an incumbent mayor
of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the
issues at hand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as

taxpayers, assert that government funds would be expended for the conduct of an
illegal and unconstitutional plebiscite to delineate the BJE territory. On that score
alone, they can be given legal standing. Their allegation that the issues involved in
these petitions are of undeniable transcendental importance clothes them with added
basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a
member of the Senate and a citizen to enforce compliance by respondents of the
publics constitutional right to be informed of the MOA-AD, as well as on a genuine
legal interest in the matter in litigation, or in the success or failure of either of the
parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the

3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B.
Gomez, et al., as members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang
Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any
proper legal interest in the present petitions. Just the same, the Court exercises its
discretion to relax the procedural technicality on locus standi given the paramount
public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and

Development, an advocacy group for justice and the attainment of peace and
prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a
non-government organization of Muslim lawyers, allege that they stand to be
benefited or prejudiced, as the case may be, in the resolution of the petitions
concerning the MOA-AD, and prays for the denial of the petitions on the grounds
therein stated. Such legal interest suffices to clothe them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent
pronouncement of the Executive Secretary that [n]o matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA.[92]

In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel.[93]

In David v. Macapagal-Arroyo,[94] this Court held that the moot and academic principle
not being a magical formula that automatically dissuades courts in resolving a case, it
will decide cases, otherwise moot and academic, if it finds that (a) there is a grave
violation of the Constitution;[95] (b) the situation is of exceptional character and
paramount public interest is involved;[96] (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the
public;[97] and (d) the case is capable of repetition yet evading review.[98]

Another exclusionary circumstance that may be considered is where there is

a voluntary cessation of the activity complained of by the defendant or doer. Thus,
once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not
automatically deprive the tribunal of power to hear and determine the case and does
not render the case moot especially when the plaintiff seeks damages or prays for
injunctive relief against the possible recurrence of the violation.[99]

The present petitions fall squarely into these exceptions to thus thrust them into the
domain of judicial review. The grounds cited above in David are just as applicable in
the present cases as they were, not only in David, but also in Province of Batangas v.
Romulo[100] and Manalo v. Calderon[101] where the Court similarly decided them on the
merits, supervening events that would ordinarily have rendered the same moot
notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD

and the eventual dissolution of the GRP Peace Panel did not moot the present
petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the
Courts issuance of a Temporary Restraining Order.

Contrary too to respondents position, the MOA-AD cannot be considered a mere list
of consensus points, especially given its nomenclature, the need to have it signed
or initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these consensus points, foremost of which is the
creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part
of respondents to amend and effect necessary changes to the existing legal
framework for certain provisions of the MOA-AD to take effect.Consequently,
the present petitions are not confined to the terms and provisions of the MOA-AD,
but to other on-going and future negotiations and agreements necessary for its
realization. The petitions have not, therefore, been rendered moot and academic
simply by the public disclosure of the MOA-AD,[102] the manifestation that it will not
be signed as well as the disbanding of the GRP Panel not withstanding.

Petitions are imbued with paramount

public interest

There is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the countrys territory and the wide-ranging political
modifications of affected LGUs. The assertion that the MOA-AD is subject to
further legal enactments including possible Constitutional amendments more
than ever provides impetus for the Court to formulate controlling principles to
guide the bench, the bar, the public and, in this case, the government and its
negotiating entity.
Respondents cite Suplico v. NEDA, et al.[103] where the Court did not pontificat[e] on
issues which no longer legitimately constitute an actual case or controversy [as this]
will do more harm than good to the nation as a whole.

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what
was assailed and eventually cancelled was a stand-alone government procurement
contract for a national broadband network involving a one-time contractual
relation between two partiesthe government and a private foreign corporation. As the
issues therein involved specific government procurement policies and standard
principles on contracts, the majority opinion in Suplico found nothing exceptional
therein, the factual circumstances being peculiar only to the transactions and parties
involved in the controversy.
The MOA-AD is part of a series of
agreements

In the present controversy, the MOA-AD is a significant part of a series of

agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD
which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third
such component to be undertaken following the implementation of
the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28,

2008 to the Solicitor General, has stated that no matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA[-AD], mootness will not
set in in light of the terms of the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn
up to carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in
another or in any form, which could contain similar or significantly drastic
provisions. While the Court notes the word of the Executive Secretary that the
government is committed to securing an agreement that is both constitutional and
equitable because that is the only way that long-lasting peace can be assured, it is
minded to render a decision on the merits in the present petitions to formulate
controlling principles to guide the bench, the bar, the public and, most
especially, the government in negotiating with the MILF regarding Ancestral
Domain.
Respondents invite the Courts attention to the separate opinion of then Chief Justice
Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated that the doctrine of
capable of repetition yet evading review can override mootness, provided the party
raising it in a proper case has been and/or continue to be prejudiced or damaged as a
direct result of their issuance. They contend that the Court must have jurisdiction
over the subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court
exercises original jurisdiction.While G.R. No. 183893 (City of Iligan v. GRP) is a
petition for Injunction and Declaratory Relief, the Court will treat it as one for
Prohibition as it has far reaching implications and raises questions that need to be
resolved.[105] At all events, the Court has jurisdiction over most if not the rest of the
petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark
cases.[106] There is a reasonable expectation that petitioners, particularly the Provinces
of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be
subjected to the same problem in the future as respondents actions are capable of
repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD and its
annexes. Too, intervenors have been furnished, or have procured for themselves,
copies of the MOA-AD.
V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the
MOA-AD was negotiated and finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public

consultation and the right to information when they negotiated and later initialed the
MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
 Petitioners invoke their constitutional right to information on matters of
public concern, as provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of

public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as
may be provided by law.[107]

As early as 1948, in Subido v. Ozaeta,[108] the Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded
constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution
and the 1987 Constitution, has been recognized as a self-executory constitutional
right.[109]

In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court ruled that access to
public records is predicated on the right of the people to acquire information on
matters of public concern since, undoubtedly, in a democracy, the pubic has a
legitimate interest in matters of social and political significance.

x x x The incorporation of this right in the Constitution is a recognition

of the fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public of the
nations problems, nor a meaningful democratic decision-making if they
are denied access to information of general interest. Information is
needed to enable the members of society to cope with the exigencies of
the times. As has been aptly observed: Maintaining the flow of such
information depends on protection for both its acquisition and its
dissemination since, if either process is interrupted, the flow inevitably
ceases. x x x[111]

In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation[112] so that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed
public that a government remains responsive to the changes desired by the people.[113]

The MOA-AD is a matter of public

concern

That the subject of the information sought in the present cases is a matter of
public concern[114] faces no serious challenge. In fact, respondents admit that the
MOA-AD is indeed of public concern.[115] In previous cases, the Court found that the
regularity of real estate transactions entered in the Register of Deeds, [116] the need for
adequate notice to the public of the various laws,[117] the civil service eligibility of a
public employee,[118] the proper management of GSIS funds allegedly used to grant
loans to public officials,[119] the recovery of the Marcoses alleged ill-gotten
wealth,[120] and the identity of party-list nominees,[121] among others, are matters of
public concern. Undoubtedly, the MOA-AD subject of the present cases is of
public concern, involving as it does the sovereignty and territorial integrity of the
State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as to
the executory nature or commercial character of agreements, the Court has
categorically ruled:

x x x [T]he right to information contemplates inclusion of

negotiations leading to the consummation of the
transaction.Certainly, a consummated contract is not a requirement for
the exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is
consummated, it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until
the contract, which may be grossly disadvantageous to the government or
even illegal, becomes fait accompli. This negates the State policy of full
transparency on matters of public concern, a situation which the framers
of the Constitution could not have intended. Such a requirement will
prevent the citizenry from participating in the public discussion of
any proposed contract, effectively truncating a basic right enshrined in
the Bill of Rights. We can allow neither an emasculation of a
constitutional right, nor a retreat by the State of its avowed policy of full
disclosure of all its transactions involving public interest.[122] (Emphasis
and italics in the original)
Intended as a splendid symmetry[123] to the right to information under the Bill of Rights is
the policy of publicdisclosure under Section 28, Article II of the Constitution
reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State

adopts and implements a policy of full public disclosure of all its
transactions involving public interest.[124]

The policy of full public disclosure enunciated in above-quoted Section

28 complements the right of access to information on matters of public concern found
in the Bill of Rights. The right to information guarantees the right of the people to
demand information, while Section 28 recognizes the duty of officialdom to give
information even if nobody demands.[125]

The policy of public disclosure establishes a concrete ethical principle for the conduct
of public affairs in a genuinely open democracy, with the peoples right to know as the
centerpiece. It is a mandate of the State to be accountable by following such
policy.[126] These provisions are vital to the exercise of the freedom of expression and
essential to hold public officials at all times accountable to the people.[127]

Whether Section 28 is self-executory, the records of the deliberations of the

Constitutional Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will
not be enunciated or will not be in force and effect until after Congress
shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics

immediately but, of course, the implementing law will have to be enacted
by Congress, Mr. Presiding Officer.[128]

The following discourse, after Commissioner Hilario Davide, Jr., sought

clarification on the issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr.

Presiding Officer, did I get the Gentleman correctly as having said that
this is not a self-executing provision? It would require a legislation by
Congress to implement?
 MR. OPLE. Yes. Originally, it was going to be self-executing, but I
accepted an amendment from Commissioner Regalado, so that the
safeguards on national interest are modified by the clause as may be
provided by law

MR. DAVIDE. But as worded, does it not mean that this will
immediately take effect and Congress may provide for reasonable
safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier
that it should immediately influence the climate of the conduct of
public affairs but, of course, Congress here may no longer pass a law
revoking it, or if this is approved, revoking this principle, which is
inconsistent with this policy.[129] (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the
passing of a statute. As Congress cannot revoke this principle, it is merely directed
to provide for reasonable safeguards. The complete and effective exercise of the right
to information necessitates that its complementary provision on public disclosure
derive the same self-executory nature. Since both provisions go hand-in-hand, it is
absurd to say that the broader[130] right to information on matters of public concern is
already enforceable while the correlative duty of the State to disclose its transactions
involving public interest is not enforceable until there is an enabling law. Respondents
cannot thus point to the absence of an implementing legislation as an excuse in not
effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or

process of communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be maintained to the
end that the government may perceive and be responsive to the peoples
will.[131] Envisioned to be corollary to the twin rights to information and disclosure is
the design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding

Officer, will the people be able to participate? Will the government
provide feedback mechanisms so that the people can participate
and can react where the existing media facilities are not able to
provide full feedback mechanisms to the government? I suppose
this will be part of the government implementing operational
mechanisms.
 MR. OPLE. Yes. I think through their elected representatives and
that is how these courses take place. There is a message and a feedback,
both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make

one last sentence?

I think when we talk about the feedback network, we are not

talking about public officials but also network of private business
o[r] community-based organizations that will be reacting. As a
matter of fact, we will put more credence or credibility on the private
network of volunteers and voluntary community-based organizations. So
I do not think we are afraid that there will be another OMA in the
making.[132] (Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is

evident in the marching orders to respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the peace agenda and
process is manifestly provided by E.O. No. 3.[133] The preambulatory clause of E.O.
No. 3 declares that there is a need to further enhance the contribution of civil society
to the comprehensive peace process by institutionalizing the peoples participation.
One of the three underlying principles of the comprehensive peace process is
that it should be community-based, reflecting the sentiments, values and principles
important to all Filipinos and shall be defined not by the government alone, nor by
the different contending groups only, but by all Filipinos as one
community.[134] Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes continuing
consultations on both national and local levels to build consensus for a peace agenda
and process, and the mobilization and facilitation of peoples participation in the peace
process.[135]

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to

effectuate continuing consultations, contrary to respondents position that
plebiscite is more than sufficient consultation.[136]

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one
of which is to [c]onduct regular dialogues with the National Peace Forum (NPF) and
other peace partners to seek relevant information, comments, recommendations as
well as to render appropriate and timely reports on the progress of the comprehensive
peace process.[137] E.O. No. 3 mandates the establishment of the NPF to be the
principal forum for the PAPP to consult with and seek advi[c]e from the peace
advocates, peace partners and concerned sectors of society on both national and local
levels, on the implementation of the comprehensive peace process, as well as for
government[-]civil society dialogue and consensus-building on peace agenda and
initiatives.[138]

In fine, E.O. No. 3 establishes petitioners right to be consulted on the peace

agenda, as a corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of

discretion

The PAPP committed grave abuse of discretion when he failed to carry out the
pertinent consultation. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority, and amounts to a
whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law and
discharge the functions within the authority granted by the President.[139]

Petitioners are not claiming a seat at the negotiating table, contrary to respondents
retort in justifying the denial of petitioners right to be consulted. Respondents stance
manifests the manner by which they treat the salient provisions of E.O. No. 3 on
peoples participation. Such disregard of the express mandate of the President is not
much different from superficial conduct toward token provisos that border on classic
lip service.[140] It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.

As for respondents invocation of the doctrine of executive privilege, it is not tenable

under the premises. The argument defies sound reason when contrasted with E.O.
No. 3s explicit provisions on continuing consultation and dialogue on both national
and local levels. The executive order even recognizes the exercise of the publics
right even before the GRP makes its official recommendations or before the
government proffers its definite propositions.[141] It bear emphasis that E.O. No. 3
seeks to elicit relevant advice, information, comments and recommendations from the
people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege
in view of their unqualified disclosure of the official copies of the final draft of the
MOA-AD. By unconditionally complying with the Courts August 4, 2008 Resolution,
without a prayer for the documents disclosure in camera, or without a manifestation
that it was complying therewith ex abundante ad cautelam.

Petitioners assertion that the Local Government Code (LGC) of 1991 declares it a
State policy to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions[142] is well-
taken. The LGC chapter on intergovernmental relations puts flesh into this avowed
policy:

Prior Consultations Required. No project or program shall be implemented

by government authorities unless the consultations mentioned in Sections
2 (c) and 26 hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That occupants in areas
where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the
provisions of the Constitution.[143] (Italics and underscoring supplied)

In Lina, Jr. v. Hon. Pao,[144] the Court held that the above-stated policy and above-
quoted provision of the LGU apply only to national programs or projects which are
to be implemented in a particular local community. Among the programs and projects
covered are those that are critical to the environment and human ecology including
those that may call for the eviction of a particular group of people residing in the
locality where these will be implemented.[145]The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast territory
to the Bangsamoro people,[146] which could pervasively and drastically result to
the diaspora or displacement of a great number of inhabitants from their total
environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs),

whose interests are represented herein by petitioner Lopez and are adversely affected
by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at
all levels of decision-making in matters which may affect their rights, lives and
destinies.[147]The MOA-AD, an instrument recognizing ancestral domain, failed to
justify its non-compliance with the clear-cut mechanisms ordained in said
Act,[148] which entails, among other things, the observance of the free and prior
informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise. The recognition of the ancestral domain is the raison detre of the
MOA-AD, without which all other stipulations or consensus points necessarily must
fail. In proceeding to make a sweeping declaration on ancestral domain, without
complying with the IPRA, which is cited as one of the TOR of the MOA-
AD, respondents clearly transcended the boundaries of their authority. As it
seems, even the heart of the MOA-AD is still subject to necessary changes to the legal
framework. While paragraph 7 on Governance suspends the effectivity of all
provisions requiring changes to the legal framework, such clause is itself invalid, as
will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if the country is
to remain democratic, with sovereignty residing in the people and all government
authority emanating from them.[149]

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they
cannot all be accommodated under the present Constitution and laws. Respondents
have admitted as much in the oral arguments before this Court, and the MOA-AD
itself recognizes the need to amend the existing legal framework to render effective at
least some of its provisions. Respondents, nonetheless, counter that the MOA-AD is
free of any legal infirmity because any provisions therein which are inconsistent with
the present legal framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be considered later. For now,
the Court shall pass upon how

The MOA-AD is inconsistent with the

Constitution and laws as presently
worded.

In general, the objections against the MOA-AD center on the extent of the powers
conceded therein to the BJE.Petitioners assert that the powers granted to the BJE
exceed those granted to any local government under present laws, and even go
beyond those of the present ARMM. Before assessing some of the specific powers
that would have been vested in the BJE, however, it would be useful to turn first to a
general idea that serves as a unifying link to the different provisions of the MOA-AD,
namely, the international law concept of association. Significantly, the MOA-AD
explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on

RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe the envisioned
relationship between the BJE and the Central Government.

4. The relationship between the Central Government and the

Bangsamoro juridical entity shall be associative characterized by
shared authority and responsibility with a structure of governance
based on executive, legislative, judicial and administrative institutions
with defined powers and functions in the comprehensive compact. A
period of transition shall be established in a comprehensive peace
compact specifying the relationship between the Central Government
and the BJE. (Emphasis and underscoring supplied)

The nature of the associative relationship may have been intended to be

defined more precisely in the still to be forged Comprehensive
Compact. Nonetheless, given that there is a concept of association in international
law, and the MOA-AD by its inclusion of international law instruments in its TOR
placed itself in an international legal context, that concept of association may be
brought to bear in understanding the use of the term associative in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily

establish durable links. In the basic model, one state, the associate,
delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations
represent a middle ground between integration and
independence. x x x[150](Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated
States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of
the Pacific Islands,[151] are associated states of the U.S. pursuant to a Compact of Free
Association. The currency in these countries is the U.S. dollar, indicating their very
close ties with the U.S., yet they issue their own travel documents, which is a mark of
their statehood. Their international legal status as states was confirmed by the UN
Security Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and

the FSM generally have the capacity to conduct foreign affairs in their own name and
right, such capacity extending to matters such as the law of the sea, marine resources,
trade, banking, postal, civil aviation, and cultural relations. The U.S. government,
when conducting its foreign affairs, is obligated to consult with the governments of
the Marshall Islands or the FSM on matters which it (U.S. government) regards as
relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of
U.S. territory. The U.S. government, moreover, has the option of establishing and
using military areas and facilities within these associated states and has the right to bar
the military personnel of any third country from having access to these territories for
military purposes.

It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nations national
constitution, and each party may terminate the association consistent with the right
of independence.It has been said that, with the admission of the U.S.-associated
states to the UN in 1990, the UN recognized that the American model of free
association is actually based on an underlying status of independence.[152]

In international practice, the associated state arrangement has usually been used as
a transitional device of former colonies on their way to full independence. Examples
of states that have passed through the status of associated states as a transitional phase
are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St.
[153]
Vincent and Grenada. All have since become independent states.

Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJEs capacity to
enter into economic and trade relations with foreign countries, the commitment of
the Central Government to ensure the BJEs participation in meetings and events in
the ASEAN and the specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJEs right to participate in
Philippine official missions bearing on negotiation of border agreements,
environmental protection, and sharing of revenues pertaining to the bodies of water
adjacent to or between the islands forming part of the ancestral domain, resembles the
right of the governments of FSM and the Marshall Islands to be consulted by the U.S.
government on any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to
vest in the BJE the status of an associated state or, at any rate, a status closely
approximating it.

The concept
of association is not recognized under the
present Constitution

No province, city, or municipality, not even the ARMM, is recognized under

our laws as having an associativerelationship with the national government. Indeed, the
concept implies powers that go beyond anything ever granted by the Constitution to
any local or regional government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for independence.

Even the mere concept animating many of the MOA-ADs provisions, therefore,
already requires for its validity the amendment of constitutional provisions,
specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of

the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim Mindanao
and the Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim

Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and distinctive
historical and cultural heritage, economic and social structures, and other
relevant characteristics within the framework of this Constitution
and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.

The BJE is a far more powerful

entity than the autonomous region
recognized in the Constitution
 It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally different from that of
the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a
state laid down in the Montevideo Convention,[154] namely, a permanent
population, a defined territory, a government, and a capacity to enter into relations
with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any
portion of Philippine territory, the spirit animating it which has betrayed itself by its
use of the concept of association runs counter to the national sovereignty and
territorial integrity of the Republic.

The defining concept underlying the relationship between the national

government and the BJE being itself contrary to the present Constitution, it is
not surprising that many of the specific provisions of the MOA-AD on the
formation and powers of the BJE are in conflict with the Constitution and the
laws.

Article X, Section 18 of the Constitution provides that [t]he creation of the

autonomous region shall be effective when approved by a majority of the votes cast
by the constituent units in a plebiscite called for the purpose, provided that only
provinces, cities, and geographic areas voting favorably in such plebiscite shall
be included in the autonomous region. (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term autonomous region in the constitutional
provision just quoted, the MOA-AD would still be in conflict with it.Under paragraph
2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the
ARMM and, in addition, the municipalities of Lanao del Norte which voted for
inclusion in the ARMM during the 2001 plebisciteBaloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal are automatically part of the BJE without need of another
plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the
overview. That the present components of the ARMM and the above-mentioned
municipalities voted for inclusion therein in 2001, however, does not render another
plebiscite unnecessary under the Constitution, precisely because what these areas
voted for then was their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not

comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the

provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region.(Underscoring
supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the
MOA-AD would require an amendment that would expand the above-quoted
provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of
said constitutional provision would not suffice, since any new law that might vest in
the BJE the powers found in the MOA-AD must, itself, comply with other provisions
of the Constitution. It would not do, for instance, to merely pass legislation vesting
the BJE with treaty-making power in order to accommodate paragraph 4 of the strand
on RESOURCES which states: The BJE is free to enter into any economic
cooperation and trade relations with foreign countries: provided, however, that such
relationships and understandings do not include aggression against the Government
of the Republic of the Philippines x x x. Under our constitutional system, it is only the
President who has that power. Pimentel v. Executive Secretary[155] instructs:

In our system of government, the President, being the head of state, is

regarded as the sole organ and authority in external relations and is
the country's sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President
is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic
 relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states. (Emphasis and
underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected. That constitutional provision states:
The State recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and development. (Underscoring
supplied) An associativearrangement does not uphold national unity. While there may
be a semblance of unity because of the associative ties between the BJE and the
national government, the act of placing a portion of Philippine territory in a status
which, in international practice, has generally been a preparation for independence, is
certainly not conducive to nationalunity.

Besides being irreconcilable with the

Constitution, the MOA-AD is
also inconsistent with prevailing statutory
law, among which are R.A. No. 9054[156] or
the Organic Act of the ARMM, and
the IPRA.[157]

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of
the definition of Bangsamoro people used in the MOA-AD. Paragraph 1
on CONCEPTS AND PRINCIPLES states:

1. It is the birthright of all Moros and all Indigenous peoples

of Mindanao to identify themselves and be accepted as
Bangsamoros. The Bangsamoro people refers to those who are natives
or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of
conquest or colonization of its descendants whether mixed or of full
blood. Spouses and their descendants are classified as Bangsamoro. The
freedom of choice of the Indigenous people shall be respected.
(Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal peoples, as follows:

As used in this Organic Act, the phrase indigenous cultural community

refers to Filipino citizens residing in the autonomous region who
are:

(a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the national
community; and

(b) Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social,
economic, cultural, and political institutions.

Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains.The MOA-ADs manner of delineating the ancestral
domain of the Bangsamoro people is a clear departure from that procedure. By
paragraph 1 of TERRITORY, the Parties simply agree that, subject to the
delimitations in the agreed Schedules, [t]he Bangsamoro homeland and historic
territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial
domains, and the aerial domain, the atmospheric space above it, embracing the
Mindanao-Sulu-Palawan geographic region.

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:

SECTION 52. Delineation Process. The identification and delineation

of ancestral domains shall be done in accordance with the following
procedures:

xxxx

b) Petition for Delineation. The process of delineating a specific

perimeter may be initiated by the NCIP with the consent of the ICC/IP
concerned, or through a Petition for Delineation filed with the NCIP, by
a majority of the members of the ICCs/IPs;

c) Delineation Proper. The official delineation of ancestral domain

boundaries including census of all community members therein, shall be
immediately undertaken by the Ancestral Domains Office upon filing of
the application by the ICCs/IPs concerned. Delineation will be done in
coordination with the community concerned and shall at all times
include genuine involvement and participation by the members of the
communities concerned;

d) Proof Required. Proof of Ancestral Domain Claims shall include the

testimony of elders or community under oath, and other documents
directly or indirectly attesting to the possession or occupation of the area
since time immemorial by such ICCs/IPs in the concept of owners
which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and

institution;

3) Pictures showing long term occupation such as those of old

improvements, burial grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning

boundaries entered into by the ICCs/IPs concerned with other
ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests

and hunting grounds;

9) Pictures and descriptive histories of traditional landmarks such as

mountains, rivers, creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of
the community.

e) Preparation of Maps. On the basis of such investigation and the

findings of fact based thereon, the Ancestral Domains Office of the
 NCIP shall prepare a perimeter map, complete with technical
descriptions, and a description of the natural features and landmarks
embraced therein;

f) Report of Investigation and Other Documents. A complete copy of

the preliminary census and a report of investigation, shall be prepared by
the Ancestral Domains Office of the NCIP;

g) Notice and Publication. A copy of each document, including a

translation in the native language of the ICCs/IPs concerned shall be
posted in a prominent place therein for at least fifteen (15) days. A copy
of the document shall also be posted at the local, provincial and regional
offices of the NCIP, and shall be published in a newspaper of general
circulation once a week for two (2) consecutive weeks to allow other
claimants to file opposition thereto within fifteen (15) days from date of
such publication: Provided, That in areas where no such newspaper
exists, broadcasting in a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if both newspaper
and radio station are not available;

h) Endorsement to NCIP. Within fifteen (15) days from publication, and

of the inspection process, the Ancestral Domains Office shall prepare a
report to the NCIP endorsing a favorable action upon a claim that is
deemed to have sufficient proof. However, if the proof is deemed
insufficient, the Ancestral Domains Office shall require the submission
of additional evidence: Provided, That the Ancestral Domains Office
shall reject any claim that is deemed patently false or fraudulent after
inspection and verification: Provided, further, That in case of rejection,
the Ancestral Domains Office shall give the applicant due notice, copy
furnished all concerned, containing the grounds for denial. The denial
shall be appealable to the NCIP: Provided, furthermore, That in cases
where there are conflicting claims among ICCs/IPs on the boundaries of
ancestral domain claims, the Ancestral Domains Office shall cause the
contending parties to meet and assist them in coming up with a
preliminary resolution of the conflict, without prejudice to its full
adjudication according to the section below.

xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and domestic statutes,
but also of international law is in order, for
Article II, Section 2 of the Constitution
states that the Philippines adopts the
generally accepted principles of
international law as part of the law of the
land.

Applying this provision of the Constitution, the Court, in Mejoff v. Director of

Prisons,[158] held that the Universal Declaration of Human Rights is part of the law of
the land on account of which it ordered the release on bail of a detained alien of
Russian descent whose deportation order had not been executed even after two
years. Similarly, the Court in Agustin v. Edu[159] applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of peoples,

understood not merely as the entire population of a State but also a portion
thereof. In considering the question of whether the people of Quebec had a right to
unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE
SECESSION OF QUEBEC[160] had occasion to acknowledge that the right of a
people to self-determination is now so widely recognized in international conventions
that the principle has acquired a status beyond convention and is considered a general
principle of international law.
Among the conventions referred to are the International Covenant on Civil and
Political Rights[161] and the International Covenant on Economic, Social and Cultural
Rights[162] which state, in Article 1 of both covenants, that all peoples, by virtue of the
right of self-determination, freely determine their political status and freely pursue
their economic, social, and cultural development.

The peoples right to self-determination should not, however, be understood as

extending to a unilateral right of secession. A distinction should be made between the
right of internal and external self-determination. REFERENCE RE SECESSION OF
QUEBEC is again instructive:

(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right
to self-determination of a people is normally fulfilled
through internal self-determination a peoples pursuit of its
political, economic, social and cultural development within the
framework of an existing state. A right to external self-
 determination (which in this case potentially takes the form of the
assertion of a right to unilateral secession) arises in only the most
extreme of casesand, even then, under carefully defined
circumstances. x x x

External self-determination can be defined as in the following

statement from the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free

association or integration with an independent State or the
emergence into any other political status freely determined by
a people constitute modes of implementing the right of self-
determination by that people. (Emphasis added)

127. The international law principle of self-determination has

evolved within a framework of respect for the territorial integrity of
existing states. The various international documents that support the
existence of a peoples right to self-determination also contain parallel
statements supportive of the conclusion that the exercise of such a right
must be sufficiently limited to prevent threats to an existing states
territorial integrity or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right
to external self-determination can arise, namely, where a people is under colonial rule,
is subject to foreign domination or exploitation outside a colonial context, and less
definitely but asserted by a number of commentators is blocked from the meaningful
exercise of its right to internal self-determination. The Court ultimately held that the
population of Quebec had no right to secession, as the same is not under colonial rule
or foreign domination, nor is it being deprived of the freedom to make political
choices and pursue economic, social and cultural development, citing that Quebec is
equitably represented in legislative, executive and judicial institutions within Canada,
even occupying prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the

REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE
LEGAL ASPECTS OF THE AALAND ISLANDS
[163]
QUESTION. There, Sweden presented to the Council of the League of
Nations the question of whether the inhabitants of the Aaland Islands should be
authorized to determine by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The Council, before
resolving the question, appointed an International Committee composed of three
jurists to submit an opinion on the preliminary issue of whether the dispute should,
based on international law, be entirely left to the domestic jurisdiction of Finland. The
Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the

right of disposing of national territory is essentially an attribute of
the sovereignty of every State. Positive International Law does not
recognize the right of national groups, as such, to separate
themselves from the State of which they form part by the simple
expression of a wish, any more than it recognizes the right of other
States to claim such a separation. Generally speaking, the grant or
refusal of the right to a portion of its population of determining its
own political fate by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of every State which is
definitively constituted. A dispute between two States concerning such
a question, under normal conditions therefore, bears upon a question
which International Law leaves entirely to the domestic jurisdiction of
one of the States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the risk of
creating difficulties and a lack of stability which would not only be
contrary to the very idea embodied in term State, but would also
endanger the interests of the international community. If this right is not
possessed by a large or small section of a nation, neither can it be held
by the State to which the national group wishes to be attached, nor by
any other State. (Emphasis and underscoring supplied)

The Committee held that the dispute concerning the Aaland Islands did not refer to a
question which is left by international law to the domestic jurisdiction of Finland,
thereby applying the exception rather than the rule elucidated above. Its ground for
departing from the general rule, however, was a very narrow one, namely, the Aaland
Islands agitation originated at a time when Finland was undergoing drastic political
transformation. The internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the
legitimacy of the Finnish national government was disputed by a large section of the
people, and it had, in fact, been chased from the capital and forcibly prevented from
carrying out its duties. The armed camps and the police were divided into two
opposing forces. In light of these circumstances, Finland was not, during the relevant
time period, a definitively constituted sovereign state. The Committee, therefore,
found that Finland did not possess the right to withhold from a portion of its
population the option to separate itself a right which sovereign nations generally have
with respect to their own populations.

Turning now to the more specific category of indigenous peoples, this term has been
used, in scholarship as well as international, regional, and state practices, to refer to
groups with distinct cultures, histories, and connections to land (spiritual and
otherwise) that have been forcibly incorporated into a larger governing society. These
groups are regarded as indigenous since they are the living descendants of pre-
invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous
peoples, nations, or communities are culturally distinctive groups that find themselves
engulfed by settler societies born of the forces of empire and conquest.[164] Examples
of groups who have been regarded as indigenous peoples are the Maori of New
Zealand and the aboriginal peoples of Canada.

As with the broader category of peoples, indigenous peoples situated within states do
not have a general right to independence or secession from those states under
international law,[165] but they do have rights amounting to what was discussed above
as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly

adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN
DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4,
the Philippines being included among those in favor, and the four voting against
being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing the
right to autonomy or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of

that right they freely determine their political status and freely pursue
their economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination,

have the right to autonomy or self-government in matters relating
 to their internal and local affairs, as well as ways and means for
financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their

distinct political, legal, economic, social and cultural institutions, while
retaining their right to participate fully, if they so choose, in the political,
economic, social and cultural life of the State.

Self-government, as used in international legal discourse pertaining to indigenous

peoples, has been understood as equivalent to internal self-determination.[166] The
extent of self-determination provided for in the UN DRIP is more particularly
defined in its subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected
to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and
redress for:
(a) Any action which has the aim or effect of depriving them
of their integrity as distinct peoples, or of their cultural
values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing
them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim
or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite

racial or ethnic discrimination directed against them.
Article 21

1. Indigenous peoples have the right, without discrimination, to the

improvement of their economic and social conditions, including,
inter alia, in the areas of education, employment, vocational training
and retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and
social conditions. Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth, children and
persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and

resources which they have traditionally owned, occupied or
otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control
the lands, territories and resources that they possess by reason of
traditional ownership or other traditional occupation or use, as well
as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with
due respect to the customs, traditions and land tenure systems of
the indigenous peoples concerned.

Article 30

1. Military activities shall not take place in the lands or territories of

indigenous peoples, unless justified by a relevant public interest or
otherwise freely agreed with or requested by the indigenous peoples
concerned.

2. States shall undertake effective consultations with the indigenous

peoples concerned, through appropriate procedures and in
particular through their representative institutions, prior to using
their lands or territories for military activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities

and strategies for the development or use of their lands or
territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in
order to obtain their free and informed consent prior to the
 approval of any project affecting their lands or territories and other
resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for
any such activities, and appropriate measures shall be taken to
mitigate adverse environmental, economic, social, cultural or
spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and

enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other
constructive arrangements.

2. Nothing in this Declaration may be interpreted as diminishing or

eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall

take the appropriate measures, including legislative measures, to achieve
the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must
now be regarded as embodying customary international law a question which the
Court need not definitively resolve here the obligations enumerated therein do not
strictly require the Republic to grant the Bangsamoro people, through the
instrumentality of the BJE, the particular rights and powers provided for in the MOA-
AD. Even the more specific provisions of the UN DRIP are general in scope,
allowing for flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now
guarantee indigenous peoples their own police and internal security force. Indeed,
Article 8 presupposes that it is the State which will provide protection for indigenous
peoples against acts like the forced dispossession of their lands a function that is
normally performed by police officers. If the protection of a right so essential to
indigenous peoples identity is acknowledged to be the responsibility of the State, then
surely the protection of rights less significant to them as such peoples would also be
the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric space. What it upholds, in
Article 26 thereof, is the right of indigenous peoples to the lands, territories and
resources which they have traditionally owned, occupied or otherwise used or
acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to

autonomy, does not obligate States to grant indigenous peoples the near-independent
status of an associated state. All the rights recognized in that document are qualified
in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for

any State, people, group or person any right to engage in any
activity or to perform any act contrary to the Charter of the United
Nations or construed as authorizing or encouraging any action
which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and
independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to
Article II, Section 2 of the Constitution, it would not suffice to uphold the validity of
the MOA-AD so as to render its compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that
cannot be reconciled with the Constitution and the laws as presently
worded. Respondents proffer, however, that the signing of the MOA-AD alone
would not have entailed any violation of law or grave abuse of discretion on their part,
precisely because it stipulates that the provisions thereof inconsistent with the laws
shall not take effect until these laws are amended. They cite paragraph 7 of the MOA-
AD strand on GOVERNANCE quoted earlier, but which is reproduced below for
convenience:

7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon signing of a Comprehensive
 Compact and upon effecting the necessary changes to the legal
framework with due regard to non derogation of prior agreements and
within the stipulated timeframe to be contained in the Comprehensive
Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the
MOA-AD from coming into force until the necessary changes to the legal framework
are effected. While the word Constitution is not mentioned in the provision now
under consideration or anywhere else in the MOA-AD, the term legal
framework is certainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere

act of incorporating in the MOA-AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states
that the negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrity of the Republic of the Philippines. (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or
worse, an implicit acknowledgment of an independent status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD

is defective because the suspensive clause is invalid, as discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is
founded on E.O. No. 3, Section 5(c), which states that there shall be established
Government Peace Negotiating Panels for negotiations with different rebel groups to
be appointed by the President as her official emissaries to conduct negotiations,
dialogues, and face-to-face discussions with rebel groups. These negotiating panels are
to report to the President, through the PAPP on the conduct and progress of the
negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the
Moro Problem through its negotiations with the MILF, was not restricted by E.O.
No. 3 only to those options available under the laws as they presently stand. One of
the components of a comprehensive peace process, which E.O. No. 3 collectively
refers to as the Paths to Peace, is the pursuit of social, economic, and political reforms
which may require new legislation or even constitutional amendments. Sec. 4(a) of
E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,[167] states:

SECTION 4. The Six Paths to Peace. The components of the

comprehensive peace process comprise the processes known as the
 Paths to Peace. These component processes are interrelated and not
mutually exclusive, and must therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall include, but may not be
limited to, the following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL

REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed
conflicts and social unrest. This may require administrative
action, new legislation or even constitutional amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of

respondents to address, pursuant to this provision of E.O. No. 3, the root causes of
the armed conflict in Mindanao. The E.O. authorized them to think outside the box,
so to speak. Hence, they negotiated and were set on signing the MOA-AD that
included various social, economic, and political reforms which cannot, however, all be
accommodated within the present legal framework, and which thus would require
new legislation and constitutional amendments.

The inquiry on the legality of the suspensive clause, however, cannot stop here,
because it must be asked

whether the President herself may

exercise the power delegated to
the GRP Peace Panel under E.O. No. 3,
Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May
the President, in the course of peace negotiations, agree to pursue reforms that would
require new legislation and constitutional amendments, or should the reforms be
restricted only to those solutions which the present laws allow? The answer to this
question requires a discussion of

the extent of the Presidents power to

conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is
not explicitly mentioned in the Constitution does not mean that she has no such
authority. In Sanlakas v. Executive Secretary,[168] in issue was the authority of the
President to declare a state of rebellion an authority which is not expressly provided
for in the Constitution. The Court held thus:

In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the
President's power to forbid the return of her exiled predecessor. The
rationale for the majority's ruling rested on the President's

. . . unstated residual powers which are implied from

the grant of executive power and which are necessary
for her to comply with her duties under the
Constitution. The powers of the President are not
limited to what are expressly enumerated in the article
on the Executive Department and in scattered
provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime
of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the
general grant of executive power.
Thus, the President's authority to declare a state of rebellion
springs in the main from her powers as chief executive and, at the
same time, draws strength from her Commander-in-Chief
powers. x x x (Emphasis and underscoring supplied)
Similarly, the Presidents power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief. As Chief
Executive, the President has the general responsibility to promote public peace, and as
Commander-in-Chief, she has the more specific duty to prevent and suppress
rebellion and lawless violence.[169]

As the experience of nations which have similarly gone through internal armed
conflict will show, however, peace is rarely attained by simply pursuing a military
solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the
nations constitutional structure is required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
 x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last ten years,
conflict cessation without modification of the political environment,
even where state-building is undertaken through technical electoral
assistance and institution- or capacity-building, is unlikely to succeed. On
average, more than 50 percent of states emerging from conflict return to
conflict. Moreover, a substantial proportion of transitions have resulted
in weak or limited democracies.

The design of a constitution and its constitution-making process can

play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to create
a common vision of the future of a state and a road map on how to get
there. The constitution can be partly a peace agreement and partly a
framework setting up the rules by which the new democracy will
operate.[170]
In the same vein, Professor Christine Bell, in her article on the nature and legal status
of peace agreements, observed that the typical way that peace agreements establish or
confirm mechanisms for demilitarization and demobilization is by linking them
to new constitutional structures addressing governance, elections, and legal and
human rights institutions.[171]

In the Philippine experience, the link between peace agreements and

constitution-making has been recognized by no less than the framers of the
Constitution. Behind the provisions of the Constitution on autonomous regions[172]is
the framers intention to implement a particular peace agreement, namely, the Tripoli
Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary
of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have

some more questions, I will reserve my right to ask them if they are not
covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy
already exists in the Muslim region; it is working very well; it has, in
fact, diminished a great deal of the problems. So, my question is: since
that already exists, why do we have to go into something new?

MR. OPLE. May I answer that on behalf of Chairman

Nolledo. Commissioner Yusup Abubakar is right that certain definite
steps have been taken to implement the provisions of
 the Tripoli Agreement with respect to an autonomous region
in Mindanao. This is a good first step, but there is no question that
this is merely a partial response to the Tripoli Agreement itself and
to the fuller standard of regional autonomy contemplated in that
agreement, and now by state policy.[173] (Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them
have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino
people are still faced with the reality of an on-going conflict between the Government
and the MILF. If the President is to be expected to find means for bringing this
conflict to an end and to achieve lasting peace in Mindanao, then she must be given
the leeway to explore, in the course of peace negotiations, solutions that may require
changes to the Constitution for their implementation. Being uniquely vested with the
power to conduct peace negotiations with rebel groups, the President is in a singular
position to know the precise nature of their grievances which, if resolved, may bring
an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she
considers viable, but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1 and
3 of the Constitution, to propose the recommended amendments or revision to the
people, call a constitutional convention, or submit to the electorate the question of
calling such a convention.

While the President does not possess constituent powers as those powers may be
exercised only by Congress, a Constitutional Convention, or the people through
initiative and referendum she may submit proposals for constitutional change to
Congress in a manner that does not involve the arrogation of constituent powers.

In Sanidad v. COMELEC,[174] in issue was the legality of then President Marcos act of
directly submitting proposals for constitutional amendments to a referendum,
bypassing the interim National Assembly which was the body vested by the 1973
Constitution with the power to propose such amendments. President Marcos, it will
be recalled, never convened the interim National Assembly. The majority upheld the
Presidents act, holding that the urges of absolute necessity compelled the President as
the agent of the people to act as he did, there being no interim National Assembly to
propose constitutional amendments. Against this ruling, Justices Teehankee and Muoz
Palma vigorously dissented. The Courts concern at present, however, is not with
regard to the point on which it was then divided in that controversial case, but on that
which was not disputed by either side.

Justice Teehankees dissent,[175] in particular, bears noting. While he disagreed

that the President may directly submit proposed constitutional amendments to a
referendum, implicit in his opinion is a recognition that he would have upheld the
Presidents action along with the majority had the President convened the interim
National Assembly and coursed his proposals through it. Thus Justice Teehankee
opined:

Since the Constitution provides for the organization of the essential

departments of government, defines and delimits the powers of each and
prescribes the manner of the exercise of such powers, and the
constituent power has not been granted to but has been withheld from
the President or Prime Minister, it follows that the Presidents questioned
decrees proposing and submitting constitutional amendments directly to
the people (without the intervention of the interim National
Assembly in whom the power is expressly vested) are devoid of
constitutional and legal basis.[176] (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President in the
course of conducting peace negotiations may validly consider implementing even
those policies that require changes to the Constitution, but she may not unilaterally
implement them without the intervention of Congress, or act in any way as if the
assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly
propose amendments through initiative and referendum, the President may also
submit her recommendations to the people, not as a formal proposal to be voted on
in a plebiscite similar to what President Marcos did in Sanidad, but for their
independent consideration of whether these recommendations merit being formally
proposed through initiative.

These recommendations, however, may amount to nothing more than the Presidents
suggestions to the people, for any further involvement in the process of initiative by
the Chief Executive may vitiate its character as a genuine peoplesinitiative. The only
initiative recognized by the Constitution is that which truly proceeds from the
people. As the Court stated in Lambino v. COMELEC:[177]
 The Lambino Group claims that their initiative is the people's
voice. However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that ULAP maintains its unqualified support to the agenda
of Her Excellency President Gloria Macapagal-Arroyo for constitutional
reforms. The Lambino Group thus admits that their people's initiative
is an unqualified support to the agenda of the incumbent President to
change the Constitution. This forewarns the Court to be wary of
incantations of people's voice or sovereign will in the present initiative.
It will be observed that the President has authority, as stated in her oath of
[178]
office, only to preserve and defend the Constitution. Such presidential power does
not, however, extend to allowing her to change the Constitution, but simply to
recommend proposed amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need not be construed as an
unconstitutional act.

The foregoing discussion focused on the Presidents authority to

propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted practice for Presidents
in this jurisdiction to propose new legislation. One of the more prominent instances
the practice is usually done is in the yearly State of the Nation Address of the
President to Congress. Moreover, the annual general appropriations bill has always
been based on the budget prepared by the President, which for all intents and
purposes is a proposal for new legislation coming from the President.[179]

The suspensive clause in the MOA-AD

viewed in light of the above-discussed
standards

Given the limited nature of the Presidents authority to propose constitutional

amendments, she cannot guarantee to any third party that the required amendments
will eventually be put in place, nor even be submitted to a plebiscite. The most she
could do is submit these proposals as recommendations either to Congress or the
people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all

provisions thereof which cannot be reconciled with the present Constitution and laws
shall come into force upon signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework. This stipulation does not bear the
marks of a suspensive condition defined in civil law as a future and uncertain event
but of a term. It is not a question of whetherthe necessary changes to the legal
framework will be effected, but when. That there is no uncertainty being
contemplated is plain from what follows, for the paragraph goes on to state that the
contemplated changes shall be with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in the
Comprehensive Compact.

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect

the changes to the legal framework contemplated in the MOA-AD which changes
would include constitutional amendments, as discussed earlier. It bears noting that,

By the time these changes are put in

place, the MOA-AD itself would be
counted among the prior agreements from
which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these consensus points and, notably, the deadline for
effecting the contemplated changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the

limits of the Presidents authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the laws of the Republic of the
Philippines will certainly be adjusted to conform to all the consensus points found in
the MOA-AD. Hence, it must be struck down as unconstitutional.

A comparison between the suspensive clause of the MOA-AD with a similar

provision appearing in the 1996 final peace agreement between the MNLF and the
GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be

implemented in two phases. Phase I covered a three-year transitional period
involving the putting up of new administrative structures through Executive Order,
such as the Special Zone of Peace and Development (SZOPAD) and the Southern
Philippines Council for Peace and Development (SPCPD), while Phase II covered
the establishment of the new regional autonomous government through amendment
or repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure

of the expanded autonomous region envisioned by the parties. To that extent, they are
similar to the provisions of the MOA-AD. There is, however, a crucial difference
between the two agreements. While the MOA-AD virtually guarantees that the
necessary changes to the legal framework will be put in place, the GRP-MNLF
final peace agreement states thus: Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the amendatory or
repealing law.

Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of the Philippine
government to the international community that it would grant to the Bangsamoro
people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have

included foreign dignitaries as signatories. In addition, representatives of other nations
were invited to witness its signing in Kuala Lumpur. These circumstances readily lead
one to surmise that the MOA-AD would have had the status of a binding
international agreement had it been signed. An examination of the prevailing
principles in international law, however, leads to the contrary conclusion.

The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD

AMNESTY[180] (the Lom Accord case) of the Special Court of Sierra Leone is
enlightening. The Lom Accord was a peace agreement signed on July 7, 1999 between
the Government of Sierra Leone and the Revolutionary United Front (RUF), a rebel
group with which the Sierra Leone Government had been in armed conflict for
around eight years at the time of signing. There were non-contracting signatories to
the agreement, among which were the Government of the Togolese Republic,
the Economic Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-

General and the Sierra Leone Government, another agreement was entered into by
the UN and that Government whereby the Special Court of Sierra Leone was
established. The sole purpose of the Special Court, an international court, was to try
persons who bore the greatest responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone
since November 30, 1996.

Among the stipulations of the Lom Accord was a provision for the full pardon
of the members of the RUF with respect to anything done by them in pursuit of their
objectives as members of that organization since the conflict began.
 In the Lom Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries of the
amnesty provided therein, citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization of that
agreement. The Special Court, however, rejected this argument, ruling that the Lome
Accord is not a treaty and that it can only create binding obligations and rights
between the parties in municipal law, not in international law. Hence, the Special
Court held, it is ineffective in depriving an international court like it of jurisdiction.

37. In regard to the nature of a negotiated settlement of

an internal armed conflict it is easy to assume and to argue with
some degree of plausibility, as Defence counsel for the
defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document
formalizing the settlement is signed by foreign heads of state
or their representatives and representatives of international
organizations, means the agreement of the parties is
internationalized so as to create obligations in international
law.

xxxx

40. Almost every conflict resolution will involve the parties to the
conflict and the mediator or facilitator of the settlement, or persons
or bodies under whose auspices the settlement took place but who
are not at all parties to the conflict, are not contracting parties and
who do not claim any obligation from the contracting parties or
incur any obligation from the settlement.

41. In this case, the parties to the conflict are the lawful authority
of the State and the RUF which has no status of statehood and
is to all intents and purposes a faction within the state. The
non-contracting signatories of the Lom Agreement
were moral guarantors of the principle that, in the terms of
Article XXXIV of the Agreement, this peace agreement is
implemented with integrity and in good faith by both
parties. The moral guarantors assumed no legal obligation. It
is recalled that the UN by its representative appended, presumably
for avoidance of doubt, an understanding of the extent of the
 agreement to be implemented as not including certain international
crimes.

42. An international agreement in the nature of a treaty must create

rights and obligations regulated by international law so that a breach
of its terms will be a breach determined under international law
which will also provide principle means of enforcement. The Lom
Agreement created neither rights nor obligations capable of
being regulated by international law. An agreement such as
the Lom Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of
peace that the international community acting through the
Security Council may take note of. That, however, will not
convert it to an international agreement which creates an
obligation enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace agreement
resulting in resumption of internal armed conflict or creating a
threat to peace in the determination of the Security Council may
indicate a reversal of the factual situation of peace to be visited with
possible legal consequences arising from the new situation of
conflict created. Such consequences such as action by the Security
Council pursuant to Chapter VII arise from the situation and not
from the agreement, nor from the obligation imposed by it. Such
action cannot be regarded as a remedy for the breach. A peace
agreement which settles an internal armed conflict cannot be
ascribed the same status as one which settles an international
armed conflict which, essentially, must be between two or
more warring States. The Lom Agreement cannot be
characterised as an international instrument. x x x (Emphasis,
italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to
vest in it a binding character under international law.

In another vein, concern has been raised that the MOA-AD would amount to a
unilateral declaration of the Philippine State, binding under international law, that it
would comply with all the stipulations stated therein, with the result that it would have
to amend its Constitution accordingly regardless of the true will of the people. Cited
as authority for this view is Australia v. France,[181] also known as the Nuclear Tests
Case, decided by the International Court of Justice (ICJ).
 In the Nuclear Tests Case, Australia challenged before the ICJ the legality of
Frances nuclear tests in the South Pacific. France refused to appear in the case, but
public statements from its President, and similar statements from other French
officials including its Minister of Defence, that its 1974 series of atmospheric tests
would be its last, persuaded the ICJ to dismiss the case.[182] Those statements, the ICJ
held, amounted to a legal undertaking addressed to the international community,
which required no acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French government intended to
be bound to the international community in issuing its public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts,

concerning legal or factual situations, may have the effect of
creating legal obligations. Declarations of this kind may be, and
often are, very specific. When it is the intention of the State
making the declaration that it should become bound
according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State
being thenceforth legally required to follow a course of
conduct consistent with the declaration. An undertaking of this
kind, if given publicly, and with an intent to be bound, even though
not made within the context of international negotiations, is
binding. In these circumstances, nothing in the nature of a quid pro
quo nor any subsequent acceptance of the declaration, nor even any
reply or reaction from other States, is required for the declaration to
take effect, since such a requirement would be inconsistent with the
strictly unilateral nature of the juridical act by which the
pronouncement by the State was made.

44. Of course, not all unilateral acts imply obligation; but a State
may choose to take up a certain position in relation to a
particular matter with the intention of being boundthe
intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of action
is to be limited, a restrictive interpretation is called for.

xxxx

51. In announcing that the 1974 series of atmospheric tests would

be the last, the French Government conveyed to the world at
 large, including the Applicant, its intention effectively to
terminate these tests. It was bound to assume that other
States might take note of these statements and rely on their
being effective. The validity of these statements and their
legal consequences must be considered within the general
framework of the security of international intercourse, and the
confidence and trust which are so essential in the relations among
States. It is from the actual substance of these statements, and
from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The
objects of these statements are clear and they were addressed
to the international community as a whole, and the Court
holds that they constitute an undertaking possessing legal
effect. The Court considers *270 that the President of the
Republic, in deciding upon the effective cessation of atmospheric
tests, gave an undertaking to the international community to which
his words were addressed. x x x (Emphasis and underscoring
supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the following
conditions are present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its statements, and
that not to give legal effect to those statements would be detrimental to the security of
international intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later
case decided by the ICJ entitled Burkina Faso v. Mali,[183] also known as the Case
Concerning the Frontier Dispute. The public declaration subject of that case was a
statement made by the President of Mali, in an interview by a foreign press agency,
that Mali would abide by the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then pending
between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Malis
President was not a unilateral act with legal implications. It clarified that its ruling in
the Nuclear Tests case rested on the peculiar circumstances surrounding the French
declaration subject thereof, to wit:
 40. In order to assess the intentions of the author of a unilateral act,
account must be taken of all the factual circumstances in which the
act occurred. For example, in the Nuclear Tests cases, the Court
took the view that since the applicant States were not the only
ones concerned at the possible continuance of atmospheric
testing by the French Government, that Government's
unilateral declarations had conveyed to the world at large,
including the Applicant, its intention effectively to terminate
these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para.
53). In the particular circumstances of those cases, the French
Government could not express an intention to be bound
otherwise than by unilateral declarations. It is difficult to see
how it could have accepted the terms of a negotiated solution
with each of the applicants without thereby jeopardizing its
contention that its conduct was lawful. The circumstances of
the present case are radically different. Here, there was
nothing to hinder the Parties from manifesting an intention to
accept the binding character of the conclusions of the
Organization of African Unity Mediation Commission by the
normal method: a formal agreement on the basis of
reciprocity. Since no agreement of this kind was concluded
between the Parties, the Chamber finds that there are no grounds to
interpret the declaration made by Mali's head of State on 11 April
1975 as a unilateral act with legal implications in regard to the
present case. (Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to the
international community. The Philippine panel did not draft the same with the clear
intention of being bound thereby to the international community as a whole or to any
State, but only to the MILF. While there were States and international organizations
involved, one way or another, in the negotiation and projected signing of the MOA-
AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. As
held in the Lom Accord case, the mere fact that in addition to the parties to the
conflict, the peace settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized so as to create
obligations in international law.

Since the commitments in the MOA-AD were not addressed to States, not to
give legal effect to such commitments would not be detrimental to the security of
international intercourse to the trust and confidence essential in the relations among
States.

In one important respect, the circumstances surrounding the MOA-AD are

closer to that of Burkina Fasowherein, as already discussed, the Mali Presidents
statement was not held to be a binding unilateral declaration by the ICJ. As in that
case, there was also nothing to hinder the Philippine panel, had it really been its
intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion in
the MOA-AD of a clear commitment to be legally bound to the international
community, not just the MILF, and by an equally clear indication that the signatures
of the participating states-representatives would constitute an acceptance of that
commitment. Entering into such a formal agreement would not have resulted in a loss
of face for the Philippine government before the international community, which was
one of the difficulties that prevented the French Government from entering into a
formal agreement with other countries. That the Philippine panel did not enter into
such a formal agreement suggests that it had no intention to be bound to the
international community. On that ground, the MOA-AD may not be considered a
unilateral declaration under international law.

The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents almost consummated act
of guaranteeing amendments to the legal framework is, by itself, sufficient to
constitute grave abuse of discretion. The grave abuse lies not in the fact that they
considered, as a solution to the Moro Problem, the creation of a state within a state,
but in their brazen willingness to guarantee that Congress and the sovereign
Filipino people would give their imprimatur to their solution. Upholding such an
act would amount to authorizing a usurpation of the constituent powers vested only
in Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome of
the amendment process is through an undue influence or interference with that
process.

The sovereign people may, if it so desired, go to the extent of giving up a

portion of its own territory to the Moros for the sake of peace, for it can change the
Constitution in any it wants, so long as the change is not inconsistent with what, in
international law, is known as Jus Cogens.[184] Respondents, however, may not preempt
it in that decision.

SUMMARY
 The petitions are ripe for adjudication. The failure of respondents to consult
the local government units or communities affected constitutes a departure by
respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded
their authority by the mere act of guaranteeing amendments to the Constitution. Any
alleged violation of the Constitution by any branch of government is a proper matter
for judicial review.

As the petitions involve constitutional issues which are of paramount public interest
or of transcendental importance, the Court grants the petitioners, petitioners-in-
intervention and intervening respondents the requisite locus standi in keeping with the
liberal stance adopted in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel mooted the present petitions, the
Court finds that the present petitions provide an exception to the moot and academic
principle in view of (a) the grave violation of the Constitution involved; (b) the
exceptional character of the situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar, and the public; and (d)
the fact that the case is capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the
GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF
back in June 2001. Hence, the present MOA-AD can be renegotiated or another one
drawn up that could contain similar or significantly dissimilar provisions compared to
the original.
The Court, however, finds that the prayers for mandamus have been rendered moot
in view of the respondents action in providing the Court and the petitioners with the
official copy of the final draft of the MOA-AD and its annexes.

The peoples right to information on matters of public concern under Sec. 7, Article
III of the Constitution is in splendid symmetry with the state policy of full public
disclosure of all its transactions involving public interest under Sec. 28, Article II of
the Constitution. The right to information guarantees the right of the people to
demand information, while Section 28 recognizes the duty of officialdom to give
information even if nobody demands. The complete and effective exercise of the right
to information necessitates that its complementary provision on public disclosure
derive the same self-executory nature, subject only to reasonable safeguards or
limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving
public interest in the highest order.In declaring that the right to information
contemplates steps and negotiations leading to the consummation of the contract,
jurisprudence finds no distinction as to the executory nature or commercial character
of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or
process of communication between the government and the people. Corollary to
these twin rights is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public rights.

At least three pertinent laws animate these constitutional imperatives and justify the
exercise of the peoples right to be consulted on relevant matters relating to the peace
agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both
national and local levels and for a principal forum for consensus-building. In fact, it is
the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues
to seek relevant information, comments, advice, and recommendations from peace
partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations before any project or program critical to the
environment and human ecology including those that may call for the eviction of a
particular group of people residing in such locality, is implemented therein. The
MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership
of a vast territory to the Bangsamoro people, which could pervasively and drastically
result to the diaspora or displacement of a great number of inhabitants from their
total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides
for clear-cut procedure for the recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and prior informed consent of
the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not
grant the Executive Department or any government agency the power to delineate and recognize an
ancestral domain claim by mere agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right
to information or the specific right to consultation is untenable. The various explicit
legal provisions fly in the face of executive secrecy. In any event, respondents
effectively waived such defense after it unconditionally disclosed the official copies of
the final draft of the MOA-AD, for judicial compliance and public scrutiny.
IN SUM, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as mandated
by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive
process by which the MOA-AD was designed and crafted runs contrary to and in
excess of the legal authority, and amounts to a whimsical, capricious, oppressive,
arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty
and a virtual refusal to perform the duty enjoined.

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

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

While the MOA-AD would not amount to an international agreement or

unilateral declaration binding on the Philippines under international law, respondents
act of guaranteeing amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective.

WHEREFORE, respondents motion to dismiss is DENIED. The main and

intervening petitions are GIVEN DUE COURSE and hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of

the GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO
LAW AND THE CONSTITUTION.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 173034 October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE

PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER
SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON,
ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J.
LOZADA, AND DR. NEMESIO T. GAKO, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an
infant is mother's milk. There is nothing greater than for a mother to nurture her
beloved child straight from her bosom. The ideal is, of course, for each and every
Filipino child to enjoy the unequaled benefits of breastmilk. But how should this end
be attained?

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court,
seeking to nullify Administrative Order (A.O.) No. 2006-0012 entitled, Revised
Implementing Rules and Regulations of Executive Order No. 51, Otherwise
Known as The "Milk Code," Relevant International Agreements, Penalizing
Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the
RIRR is not valid as it contains provisions that are not constitutional and go beyond
the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant

Secretaries of the Department of Health (DOH). For purposes of herein petition, the
DOH is deemed impleaded as a co-respondent since respondents issued the
questioned RIRR in their capacity as officials of said executive agency.1

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on
October 28, 1986 by virtue of the legislative powers granted to the president under
the Freedom Constitution. One of the preambular clauses of the Milk Code states that
the law seeks to give effect to Article 112 of the International Code of Marketing of
Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly
(WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the
effect that breastfeeding should be supported, promoted and protected, hence, it
should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the
Child. Article 24 of said instrument provides that State Parties should take appropriate
measures to diminish infant and child mortality, and ensure that all segments of
society, specially parents and children, are informed of the advantages of
breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on
July 7, 2006.

However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition for Certiorari and
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO) or
Writ of Preliminary Injunction.

The main issue raised in the petition is whether respondents officers of the DOH
acted without or in excess of jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, and in violation of the provisions of the Constitution
in promulgating the RIRR.3

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining
respondents from implementing the questioned RIRR.

After the Comment and Reply had been filed, the Court set the case for oral
arguments on June 19, 2007. The Court issued an Advisory (Guidance for Oral
Arguments) dated June 5, 2007, to wit:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing

Rules and Regulations (RIRR) issued by the Department of Health (DOH) is
not constitutional;
 2.1 Whether the RIRR is in accord with the provisions of Executive Order No.
51 (Milk Code);

2.2 Whether pertinent international agreements1 entered into by the Philippines

are part of the law of the land and may be implemented by the DOH through
the RIRR; If in the affirmative, whether the RIRR is in accord with the
international agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due
process clause and are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient

standards.

_____________

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and
Unicef "2002 Global Strategy on Infant and Young Child Feeding;" and (3)
various World Health Assembly (WHA) Resolutions.

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real
party-in-interest, the Court adopts the view enunciated in Executive Secretary v.
Court of Appeals,4 to wit:

The modern view is that an association has standing to complain of injuries to

its members. This view fuses the legal identity of an association with that of its
members. An association has standing to file suit for its workers despite
its lack of direct interest if its members are affected by the action. An
organization has standing to assert the concerns of its constituents.

xxxx

x x x We note that, under its Articles of Incorporation, the respondent was

organized x x x to act as the representative of any individual, company, entity
or association on matters related to the manpower recruitment industry, and to
perform other acts and activities necessary to accomplish the purposes
 embodied therein. The respondent is, thus, the appropriate party to assert
the rights of its members, because it and its members are in every
practical sense identical. x x x The respondent [association] is but the
medium through which its individual members seek to make more
effective the expression of their voices and the redress of their
grievances. 5 (Emphasis supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court
ruled that an association has the legal personality to represent its members because the
results of the case will affect their vital interests.7

Herein petitioner's Amended Articles of Incorporation contains a similar provision

just like in Executive Secretary, that the association is formed "to represent directly or
through approved representatives the pharmaceutical and health care industry before
the Philippine Government and any of its agencies, the medical professions and the
general public."8 Thus, as an organization, petitioner definitely has an interest in
fulfilling its avowed purpose of representing members who are part of the
pharmaceutical and health care industry. Petitioner is duly authorized9 to take the
appropriate course of action to bring to the attention of government agencies and the
courts any grievance suffered by its members which are directly affected by the RIRR.
Petitioner, which is mandated by its Amended Articles of Incorporation to represent
the entire industry, would be remiss in its duties if it fails to act on governmental
action that would affect any of its industry members, no matter how few or numerous
they are. Hence, petitioner, whose legal identity is deemed fused with its members,
should be considered as a real party-in-interest which stands to be benefited or injured
by any judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by

respondents are part of the law of the land.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk
Code, thereby amending and expanding the coverage of said law. The defense of the
DOH is that the RIRR implements not only the Milk Code but also various
international instruments10 regarding infant and young child nutrition. It is
respondents' position that said international instruments are deemed part of the law of
the land and therefore the DOH may implement them through the RIRR.

The Court notes that the following international instruments invoked by respondents,
namely: (1) The United Nations Convention on the Rights of the Child; (2) The
International Covenant on Economic, Social and Cultural Rights; and (3) the
Convention on the Elimination of All Forms of Discrimination Against Women, only
provide in general terms that steps must be taken by State Parties to diminish infant
and child mortality and inform society of the advantages of breastfeeding, ensure the
health and well-being of families, and ensure that women are provided with services
and nutrition in connection with pregnancy and lactation. Said instruments do not
contain specific provisions regarding the use or marketing of breastmilk substitutes.

The international instruments that do have specific provisions regarding breastmilk

substitutes are the ICMBS and various WHA Resolutions.

Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation.11 The transformation
method requires that an international law be transformed into a domestic law through
a constitutional mechanism such as local legislation. The incorporation method
applies when, by mere constitutional declaration, international law is deemed to have
the force of domestic law.12

Treaties become part of the law of the land through transformation pursuant to
Article VII, Section 21 of the Constitution which provides that "[n]o treaty or
international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the members of the Senate." Thus, treaties or conventional
international law must go through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to domestic conflicts.13

The ICMBS and WHA Resolutions are not treaties as they have not been concurred
in by at least two-thirds of all members of the Senate as required under Section 21,
Article VII of the 1987 Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been transformed
into domestic law through local legislation, the Milk Code. Consequently, it is the Milk
Code that has the force and effect of law in this jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to
emphasize at this point that the Code did not adopt the provision in the ICMBS
absolutely prohibiting advertising or other forms of promotion to the general
public of products within the scope of the ICMBS. Instead, the Milk Code
expressly provides that advertising, promotion, or other marketing materials
may be allowed if such materials are duly authorized and approved by the
Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. The Philippines renounces war as an instrument of national

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

embodies the incorporation method.14

In Mijares v. Ranada,15 the Court held thus:

[G]enerally accepted principles of international law, by virtue of the

incorporation clause of the Constitution, form part of the laws of the land even
if they do not derive from treaty obligations. The classical formulation in
international law sees those customary rules accepted as binding result from the
combination [of] two elements: the established, widespread, and consistent
practice on the part of States; and a psychological element known as the
opinion juris sive necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is rendered obligatory by
the existence of a rule of law requiring it.16 (Emphasis supplied)

"Generally accepted principles of international law" refers to norms of general or

customary international law which are binding on all states,17 i.e., renunciation of war
as an instrument of national policy, the principle of sovereign immunity,18 a person's
right to life, liberty and due process,19 and pacta sunt servanda,20 among others. The
concept of "generally accepted principles of law" has also been depicted in this wise:

Some legal scholars and judges look upon certain "general principles of law" as a
primary source of international law because they have the "character of jus
rationale" and are "valid through all kinds of human societies." (Judge Tanaka
in his dissenting opinion in the 1966 South West Africa Case, 1966 I.C.J. 296).
O'Connell holds that certain priniciples are part of international law because they are
"basic to legal systems generally" and hence part of the jus gentium. These
principles, he believes, are established by a process of reasoning based on the
common identity of all legal systems. If there should be doubt or disagreement, one
must look to state practice and determine whether the municipal law principle
provides a just and acceptable solution. x x x 21 (Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means "a general and

consistent practice of states followed by them from a sense of legal
 obligation [opinio juris]." (Restatement) This statement contains the two
basic elements of custom: the material factor, that is, how states behave,
and the psychological or subjective factor, that is, why they behave the
way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior
of states. This includes several elements: duration, consistency, and generality
of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary
to determine why states behave the way they do. Do states behave the way they
do because they consider it obligatory to behave thus or do they do it only
as a matter of courtesy? Opinio juris, or the belief that a certain form of
behavior is obligatory, is what makes practice an international rule.
Without it, practice is not law.22(Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic

system.23

WHA Resolutions have not been embodied in any local legislation. Have they attained
the status of customary law and should they then be deemed incorporated as part of
the law of the land?

The World Health Organization (WHO) is one of the international specialized

agencies allied with the United Nations (UN) by virtue of Article 57,24 in relation to
Article 6325 of the UN Charter. Under the 1946 WHO Constitution, it is the WHA
which determines the policies of the WHO,26 and has the power to adopt regulations
concerning "advertising and labeling of biological, pharmaceutical and similar
products moving in international commerce,"27and to "make recommendations to
members with respect to any matter within the competence of the
Organization."28 The legal effect of its regulations, as opposed to recommendations, is
quite different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind
member states thus:

Article 19. The Health Assembly shall have authority to adopt conventions or
agreements with respect to any matter within the competence of the
Organization. A two-thirds vote of the Health Assembly shall be required for
the adoption of such conventions or agreements, which shall come into
force for each Member when accepted by it in accordance with its
constitutional processes.

Article 20. Each Member undertakes that it will, within eighteen months
after the adoption by the Health Assembly of a convention or agreement, take
action relative to the acceptance of such convention or agreement. Each
Member shall notify the Director-General of the action taken, and if it does not
accept such convention or agreement within the time limit, it will furnish a
statement of the reasons for non-acceptance. In case of acceptance, each
Member agrees to make an annual report to the Director-General in
accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations
concerning: (a) sanitary and quarantine requirements and other procedures
designed to prevent the international spread of disease; (b) nomenclatures with
respect to diseases, causes of death and public health practices; (c) standards
with respect to diagnostic procedures for international use; (d) standards with
respect to the safety, purity and potency of biological, pharmaceutical and
similar products moving in international commerce; (e) advertising and labeling
of biological, pharmaceutical and similar products moving in international
commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly except for
such Members as may notify the Director-General of rejection or reservations within the period
stated in the notice. (Emphasis supplied)

On the other hand, under Article 23, recommendations of the WHA do not come
into force for members, in the same way that conventions or agreements under
Article 19 and regulations under Article 21 come into force. Article 23 of the WHO
Constitution reads:
 Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter within the
competence of the Organization. (Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the

recommendation would come into force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not binding, but they "carry moral and political
weight, as they constitute the judgment on a health issue of the collective membership
of the highest international body in the field of health."29 Even the ICMBS itself was
adopted as a mere recommendation, as WHA Resolution No. 34.22 states:

"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of

Article 23 of the Constitution, the International Code of Marketing of
Breastmilk Substitutes annexed to the present resolution." (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

In January 1981, the Executive Board of the World Health Organization at its
sixty-seventh session, considered the fourth draft of the code, endorsed it, and
unanimously recommended to the Thirty-fourth World Health Assembly the
text of a resolution by which it would adopt the code in the form of a
recommendation rather than a regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62

of the WHO Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to
conventions, agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA
Resolutions urging member states to implement the ICMBS are merely
recommendatory and legally non-binding. Thus, unlike what has been done with
the ICMBS whereby the legislature enacted most of the provisions into law
which is the Milk Code, the subsequent WHA Resolutions,30 specifically
providing for exclusive breastfeeding from 0-6 months, continued
breastfeeding up to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as a domestic
law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding
norms, principles and practices that influence state behavior.31

"Soft law" does not fall into any of the categories of international law set forth in
Article 38, Chapter III of the 1946 Statute of the International Court of Justice.32 It is,
however, an expression of non-binding norms, principles, and practices that influence
state behavior.33 Certain declarations and resolutions of the UN General Assembly fall
under this category.34 The most notable is the UN Declaration of Human Rights,
which this Court has enforced in various cases, specifically, Government of Hongkong
Special Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36 Mijares v.
Raada37 and Shangri-la International Hotel Management, Ltd. v. Developers Group of
Companies, Inc..38

The World Intellectual Property Organization (WIPO), a specialized agency attached

to the UN with the mandate to promote and protect intellectual property worldwide,
has resorted to soft law as a rapid means of norm creation, in order "to reflect and
respond to the changing needs and demands of its constituents."39 Other international
organizations which have resorted to soft law include the International Labor
Organization and the Food and Agriculture Organization (in the form of the Codex
Alimentarius).40

WHO has resorted to soft law. This was most evident at the time of the Severe Acute
Respiratory Syndrome (SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law
binding on WHO member states, it provides an excellent example of the
power of "soft law" in international relations. International lawyers
typically distinguish binding rules of international law-"hard law"-from
non-binding norms, principles, and practices that influence state
behavior-"soft law." WHO has during its existence generated many soft
law norms, creating a "soft law regime" in international governance for
public health.

The "soft law" SARS and IHR Resolutions represent significant steps in laying
the political groundwork for improved international cooperation on infectious
diseases. These resolutions clearly define WHO member states' normative duty
to cooperate fully with other countries and with WHO in connection with
infectious disease surveillance and response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the
SARS epidemic, the duty is powerful politically for two reasons. First, the
 SARS outbreak has taught the lesson that participating in, and enhancing,
international cooperation on infectious disease controls is in a country's self-
interest x x x if this warning is heeded, the "soft law" in the SARS and IHR
Resolution could inform the development of general and consistent state
practice on infectious disease surveillance and outbreak response, perhaps
crystallizing eventually into customary international law on infectious disease
prevention and control.41

In the Philippines, the executive department implemented certain measures

recommended by WHO to address the outbreaks of SARS and Avian flu by issuing
Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February 2,
2004, delegating to various departments broad powers to close down
schools/establishments, conduct health surveillance and monitoring, and ban
importation of poultry and agricultural products.

It must be emphasized that even under such an international emergency, the duty of a
state to implement the IHR Resolution was still considered not binding or
enforceable, although said resolutions had great political influence.

As previously discussed, for an international rule to be considered as customary law, it

must be established that such rule is being followed by states because they consider it
obligatory to comply with such rules (opinio juris). Respondents have not presented
any evidence to prove that the WHA Resolutions, although signed by most of the
member states, were in fact enforced or practiced by at least a majority of the member
states; neither have respondents proven that any compliance by member states with
said WHA Resolutions was obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are
customary international law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA

Resolutions into domestic law. The provisions of the WHA Resolutions cannot be
considered as part of the law of the land that can be implemented by executive
agencies without the need of a law enacted by the legislature.

Second, the Court will determine whether the DOH may implement the provisions
of the WHA Resolutions by virtue of its powers and functions under the Revised
Administrative Code even in the absence of a domestic law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides

that the DOH shall define the national health policy and implement a national
health plan within the framework of the government's general policies and plans,
and issue orders and regulations concerning the implementation of established
health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other

forms of promotion of breastmilk substitutes provided in some WHA Resolutions
has been adopted as part of the national health policy.

Respondents submit that the national policy on infant and young child feeding is
embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative
Order declared the following policy guidelines: (1) ideal breastfeeding practices, such
as early initiation of breastfeeding, exclusive breastfeeding for the first six months,
extended breastfeeding up to two years and beyond; (2) appropriate complementary
feeding, which is to start at age six months; (3) micronutrient supplementation; (4)
universal salt iodization; (5) the exercise of other feeding options; and (6) feeding in
exceptionally difficult circumstances. Indeed, the primacy of breastfeeding for
children is emphasized as a national health policy. However, nowhere in A.O. No.
2005-0014 is it declared that as part of such health policy, the advertisement or
promotion of breastmilk substitutes should be absolutely prohibited.

The national policy of protection, promotion and support of breastfeeding cannot

automatically be equated with a total ban on advertising for breastmilk substitutes.

In view of the enactment of the Milk Code which does not contain a total ban on the
advertising and promotion of breastmilk substitutes, but instead, specifically creates
an IAC which will regulate said advertising and promotion, it follows that a total ban
policy could be implemented only pursuant to a law amending the Milk Code passed
by the constitutionally authorized branch of government, the legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA
Resolutions, can be validly implemented by the DOH through the subject RIRR.

Third, the Court will now determine whether the provisions of the RIRR are in
accordance with those of the Milk Code.

In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner
alleges the following:

1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR
extended its coverage to "young children" or those from ages two years old and
beyond:
 MILK CODE RIRR
WHEREAS, in order to ensure that Section 2. Purpose These Revised
safe and adequate nutrition for infants is Rules and Regulations are hereby
provided, there is a need to protect and promulgated to ensure the provision of
promote breastfeeding and to inform safe and adequate nutrition for infants
the public about the proper use of and young children by the promotion,
breastmilk substitutes and supplements protection and support of breastfeeding
and related products through adequate, and by ensuring the proper use of
consistent and objective information breastmilk substitutes, breastmilk
and appropriate regulation of the supplements and related products when
marketing and distribution of the said these are medically indicated and only
substitutes, supplements and related when necessary, on the basis of
products; adequate information and through
appropriate marketing and distribution.
SECTION 4(e). "Infant" means a
person falling within the age bracket Section 5(ff). "Young Child" means a
of 0-12 months. person from the age of more than
twelve (12) months up to the age of
three (3) years (36 months).

2. The Milk Code recognizes that infant formula may be a proper and possible
substitute for breastmilk in certain instances; but the RIRR provides "exclusive
breastfeeding for infants from 0-6 months" and declares that "there is no
substitute nor replacement for breastmilk":

MILK CODE RIRR

WHEREAS, in order to ensure that Section 4. Declaration of Principles
safe and adequate nutrition for infants is The following are the underlying
provided, there is a need to protect and principles from which the revised rules
promote breastfeeding and to inform and regulations are premised upon:
the public about the proper use of
breastmilk substitutes and supplements a. Exclusive breastfeeding is for
and related products through adequate, infants from 0 to six (6) months.
consistent and objective information
and appropriate regulation of the b. There is no substitute or
marketing and distribution of the said replacement for breastmilk.
substitutes, supplements and related
products;
3. The Milk Code only regulates and does not impose unreasonable
requirements for advertising and promotion; RIRR imposes an absolute ban on
such activities for breastmilk substitutes intended for infants from 0-24 months
old or beyond, and forbids the use of health and nutritional claims. Section 13
of the RIRR, which provides for a "total effect" in the promotion of products
within the scope of the Code, is vague:

MILK CODE RIRR

SECTION 6. The General Public Section 4. Declaration of Principles
and Mothers. The following are the underlying
principles from which the revised rules
(a) No advertising, promotion or other and regulations are premised upon:
marketing materials, whether written,
audio or visual, for products within the x x x x
scope of this Code shall be printed,
published, distributed, exhibited and f. Advertising, promotions, or sponsor-
broadcast unless such materials are duly ships of infant formula, breastmilk
authorized and approved by an inter- substitutes and other related
agency committee created herein products are prohibited.
pursuant to the applicable standards
provided for in this Code. Section 11. Prohibition No
advertising, promotions, sponsorships,
or marketing materials and activities for
breastmilk substitutes intended for
infants and young children up to
twenty-four (24) months, shall be
allowed, because they tend to convey or
give subliminal messages or impressions
that undermine breastmilk and
breastfeeding or otherwise exaggerate
breastmilk substitutes and/or
replacements, as well as related products
covered within the scope of this Code.

Section 13. "Total Effect" -

Promotion of products within the scope
of this Code must be objective and
should not equate or make the product
appear to be as good or equal to
breastmilk or breastfeeding in the
advertising concept. It must not in any
case undermine breastmilk or
breastfeeding. The "total effect" should
not directly or indirectly suggest that
buying their product would produce
better individuals, or resulting in greater
love, intelligence, ability, harmony or in
any manner bring better health to the
baby or other such exaggerated and
unsubstantiated claim.

Section 15. Content of Materials. -

The following shall not be included in
advertising, promotional and marketing
materials:

a. Texts, pictures, illustrations or

information which discourage or tend to
undermine the benefits or superiority of
breastfeeding or which idealize the use
of breastmilk substitutes and milk
supplements. In this connection, no
pictures of babies and children together
with their mothers, fathers, siblings,
grandparents, other relatives or
caregivers (or yayas) shall be used in any
advertisements for infant formula and
breastmilk supplements;

b. The term "humanized,"

"maternalized," "close to mother's milk"
or similar words in describing
breastmilk substitutes or milk
supplements;

c. Pictures or texts that idealize the use

of infant and milk formula.

Section 16. All health and nutrition

claims for products within the scope of
the Code are absolutely prohibited. For
this purpose, any phrase or words that

4. The RIRR imposes additional labeling requirements not found in the Milk
Code:
MILK CODE
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be
designed to provide the necessary
information about the appropriate use
of the products, and in such a way as
not to discourage breastfeeding.
(b) Each container shall have a clear,
conspicuous and easily readable and
understandable message in Pilipino or
English printed on it, or on a label,
which message can not readily become
separated from it, and which shall
include the following points:
(i) the words "Important Notice" or
their equivalent;
(ii) a statement of the superiority of
breastfeeding;
(iii) a statement that the product shall be (e) Instructions for appropriate prepara-
used only on the advice of a health
worker as to the need for its use and the hazards of inappropriate preparation;
proper methods of use; and
(iv) instructions for appropriate
preparation, and a warning against the
health hazards of inappropriate
preparation.
connotes to increase emotional,
intellectual abilities of the infant and
young child and other like phrases shall
not be allowed.
RIRR
Section 26. Content Each
container/label shall contain such
message, in both Filipino and English
languages, and which message cannot be
readily separated therefrom, relative the
following points:
(a) The words or phrase "Important
Notice" or "Government Warning" or
their equivalent;
(b) A statement of the superiority of
breastfeeding;
(c) A statement that there is no
substitute for breastmilk;
(d) A statement that the product shall
be used only on the advice of a health
worker as to the need for its use and the
proper methods of use;
tion, and a warning against the health
and
(f) The health hazards of unnecessary or
improper use of infant formula and
other related products including
information that powdered infant
formula may contain pathogenic
 microorganisms and must be prepared
and used appropriately.

5. The Milk Code allows dissemination of information on infant formula to

health professionals; the RIRR totally prohibits such activity:

MILK CODE RIRR

SECTION 7. Health Care System. Section 22. No manufacturer,
distributor, or representatives of
(b) No facility of the health care system products covered by the Code shall be
shall be used for the purpose of allowed to conduct or be involved
promoting infant formula or other in any activity on breastfeeding
products within the scope of this promotion, education and production
Code. This Code does not, however, of Information, Education and
preclude the dissemination of Communication (IEC) materials on
information to health professionals as breastfeeding, holding of or
provided in Section 8(b). participating as speakers in classes or
seminars for women and children
SECTION 8. Health Workers. - activities and to avoid the use of these
venues to market their brands or
(b) Information provided by company names.
manufacturers and distributors to health
professionals regarding products within SECTION 16. All health and nutrition
the scope of this Code shall be claims for products within the scope of
restricted to scientific and factual the Code are absolutely prohibited. For
matters and such information shall not this purpose, any phrase or words that
imply or create a belief that bottle- connotes to increase emotional,
feeding is equivalent or superior to intellectual abilities of the infant and
breastfeeding. It shall also include the young child and other like phrases shall
information specified in Section 5(b). not be allowed.

6. The Milk Code permits milk manufacturers and distributors to extend

assistance in research and continuing education of health professionals; RIRR
absolutely forbids the same.

MILK CODE RIRR

SECTION 8. Health Workers Section 4. Declaration of Principles

(e) Manufacturers and distributors of The following are the underlying

products within the scope of this principles from which the revised rules
 Code may assist in the research,
scholarships and continuing education,
of health professionals, in accordance
with the rules and regulations
promulgated by the Ministry of Health.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits
it.
MILK CODE
SECTION 6. The General Public
and regulations are premised upon:
i. Milk companies, and their
representatives, should not form part of
any policymaking body or entity in
relation to the advancement of
breasfeeding.
SECTION 22. No manufacturer,
distributor, or representatives of
products covered by the Code shall be
allowed to conduct or be involved
in any activity on breastfeeding
promotion, education and production
of Information, Education and
Communication (IEC) materials on
breastfeeding, holding of or
participating as speakers in classes or
seminars for women and children
activities and to avoid the use of these
venues to market their brands or
company names.
SECTION 32. Primary
Responsibility of Health Workers - It
is the primary responsibility of the
health workers to promote, protect and
support breastfeeding and appropriate
infant and young child feeding. Part of
this responsibility is to continuously
update their knowledge and skills on
breastfeeding. No assistance, support,
logistics or training from milk
companies shall be permitted.
RIRR
Section 51. Donations Within the
Scope of This Code - Donations of
 and Mothers. products, materials, defined and
covered under the Milk Code and these
(f) Nothing herein contained shall implementing rules and regulations,
prevent donations from manufacturers shall be strictly prohibited.
and distributors of products within the
scope of this Code upon request by or Section 52. Other Donations By Milk
with the approval of the Ministry of Companies Not Covered by this
Health. Code. - Donations of products,
equipments, and the like, not otherwise
falling within the scope of this Code or
these Rules, given by milk companies
and their agents, representatives,
whether in kind or in cash, may only be
coursed through the Inter Agency
Committee (IAC), which shall
determine whether such donation be
accepted or otherwise.

8. The RIRR provides for administrative sanctions not imposed by the Milk
Code.

MILK CODE RIRR

Section 46. Administrative Sanctions.
The following administrative
sanctions shall be imposed upon any
person, juridical or natural, found to
have violated the provisions of the
Code and its implementing Rules and
Regulations:

a) 1st violation Warning;

b) 2nd violation Administrative fine of

a minimum of Ten Thousand
(P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on the
gravity and extent of the violation,
including the recall of the offending
product;

c) 3rd violation Administrative Fine of

a minimum of Sixty Thousand
(P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos,
depending on the gravity and extent of
the violation, and in addition thereto,
the recall of the offending product, and
suspension of the Certificate of Product
Registration (CPR);

d) 4th violation Administrative Fine of

a minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos,
depending on the gravity and extent of
the violation; and in addition thereto,
the recall of the product, revocation of
the CPR, suspension of the License to
Operate (LTO) for one year;

e) 5th and succeeding repeated violations

Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of the
offending product, cancellation of the
CPR, revocation of the License to
Operate (LTO) of the company
concerned, including the blacklisting of
the company to be furnished the
Department of Budget and
Management (DBM) and the
Department of Trade and Industry
(DTI);

f) An additional penalty of Two Thou-

sand Five Hundred (P2,500.00) Pesos
per day shall be made for every day the
violation continues after having received
the order from the IAC or other such
appropriate body, notifying and
penalizing the company for the
infraction.
 For purposes of determining whether or
not there is "repeated" violation, each
product violation belonging or owned
by a company, including those of their
subsidiaries, are deemed to be violations
of the concerned milk company and
shall not be based on the specific
violating product alone.

9. The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.

1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to
children 0-12 months old. Section 3 of the Milk Code states:

SECTION 3. Scope of the Code The Code applies to the marketing, and
practices related thereto, of the following products: breastmilk substitutes,
including infant formula; other milk products, foods and beverages, including
bottle-fed complementary foods, when marketed or otherwise represented to
be suitable, with or without modification, for use as a partial or total
replacement of breastmilk; feeding bottles and teats. It also applies to their
quality and availability, and to information concerning their use.

Clearly, the coverage of the Milk Code is not dependent on the age of the child but on
the kind of product being marketed to the public. The law treats infant formula,
bottle-fed complementary food, and breastmilk substitute as separate and distinct
product categories.

Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x
to satisfy the normal nutritional requirements of infants up to between four to six
months of age, and adapted to their physiological characteristics"; while under Section
4(b), bottle-fed complementary food refers to "any food, whether manufactured or
locally prepared, suitable as a complement to breastmilk or infant formula, when
either becomes insufficient to satisfy the nutritional requirements of the infant." An
infant under Section 4(e) is a person falling within the age bracket 0-12 months. It is
the nourishment of this group of infants or children aged 0-12 months that is sought
to be promoted and protected by the Milk Code.

But there is another target group. Breastmilk substitute is defined under Section 4(a)
as "any food being marketed or otherwise presented as a partial or total replacement
for breastmilk, whether or not suitable for that purpose." This section
conspicuously lacks reference to any particular age-group of children. Hence,
the provision of the Milk Code cannot be considered exclusive for children
aged 0-12 months. In other words, breastmilk substitutes may also be intended for
young children more than 12 months of age. Therefore, by regulating breastmilk
substitutes, the Milk Code also intends to protect and promote the nourishment of
children more than 12 months old.

Evidently, as long as what is being marketed falls within the scope of the Milk Code
as provided in Section 3, then it can be subject to regulation pursuant to said law,
even if the product is to be used by children aged over 12 months.

There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.

2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does
not recognize that breastmilk substitutes may be a proper and possible substitute for
breastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must be considered
and construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses
and phrases in the Rule should not be studied as detached and isolated expressions,
but the whole and every part thereof must be considered in fixing the meaning of any
of its parts and in order to produce a harmonious whole."

Section 7 of the RIRR provides that "when medically indicated and only when
necessary, the use of breastmilk substitutes is proper if based on complete and
updated information." Section 8 of the RIRR also states that information and
educational materials should include information on the proper use of infant formula
when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases,
the use of breastmilk substitutes may be proper.

3. The Court shall ascertain the merits of allegations 345 and 446 together as they are
interlinked with each other.

To resolve the question of whether the labeling requirements and advertising

regulations under the RIRR are valid, it is important to deal first with the nature,
purpose, and depth of the regulatory powers of the DOH, as defined in general under
the 1987 Administrative Code,47 and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer span of
jurisprudence on that matter precludes the need to further discuss it..48 However,
health information, particularly advertising materials on apparently non-toxic products
like breastmilk substitutes and supplements, is a relatively new area for regulation by
the DOH.49

As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health
information was already within the ambit of the regulatory powers of the predecessor
of DOH.51 Section 938 thereof charged it with the duty to protect the health of the
people, and vested it with such powers as "(g) the dissemination of hygienic
information among the people and especially the inculcation of knowledge as to
the proper care of infants and the methods of preventing and combating dangerous
communicable diseases."

Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry
out the state policy pronounced under Section 15, Article II of the 1987 Constitution,
which is "to protect and promote the right to health of the people and instill health
consciousness among them."52 To that end, it was granted under Section 3 of the
Administrative Code the power to "(6) propagate health information and educate the
population on important health, medical and environmental matters which have
health implications."53

When it comes to information regarding nutrition of infants and young children,

however, the Milk Code specifically delegated to the Ministry of Health (hereinafter
referred to as DOH) the power to ensure that there is adequate, consistent and
objective information on breastfeeding and use of breastmilk substitutes, supplements
and related products; and the power to control such information. These are expressly
provided for in Sections 12 and 5(a), to wit:

SECTION 12. Implementation and Monitoring

xxxx

(b) The Ministry of Health shall be principally responsible for the

implementation and enforcement of the provisions of this Code. For this
purpose, the Ministry of Health shall have the following powers and functions:

(1) To promulgate such rules and regulations as are necessary or proper

for the implementation of this Code and the accomplishment of its
purposes and objectives.
 xxxx

(4) To exercise such other powers and functions as may be necessary for
or incidental to the attainment of the purposes and objectives of this
Code.

SECTION 5. Information and Education

(a) The government shall ensure that objective and consistent information is
provided on infant feeding, for use by families and those involved in the field
of infant nutrition. This responsibility shall cover the planning, provision,
design and dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any
information on breastmilk vis--vis breastmilk substitutes, supplement and related
products, in the following manner:

SECTION 5. x x x

(b) Informational and educational materials, whether written, audio, or visual,

dealing with the feeding of infants and intended to reach pregnant women and
mothers of infants, shall include clear information on all the following points:
(1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing
the decision not to breastfeed; and (5) where needed, the proper use of infant
formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health
hazards of inappropriate foods or feeding methods; and, in particular,
the health hazards of unnecessary or improper use of infant formula and
other breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes.

SECTION 8. Health Workers

xxxx

(b) Information provided by manufacturers and distributors to health

professionals regarding products within the scope of this Code shall be
restricted to scientific and factual matters, and such information shall
 not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section
5(b).

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary

information about the appropriate use of the products, and in such a way as
not to discourage breastfeeding.

xxxx

(d) The term "humanized," "maternalized" or similar terms shall not be used.
(Emphasis supplied)

The DOH is also authorized to control the purpose of the information and to whom
such information may be disseminated under Sections 6 through 9 of the Milk
Code54 to ensure that the information that would reach pregnant women, mothers of
infants, and health professionals and workers in the health care system is restricted to
scientific and factual matters and shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding.

It bears emphasis, however, that the DOH's power under the Milk Code
to control information regarding breastmilk vis-a-vis breastmilk substitutes is not
absolute as the power to control does not encompass the power to absolutely
prohibit the advertising, marketing, and promotion of breastmilk substitutes.

The following are the provisions of the Milk Code that unequivocally indicate that the
control over information given to the DOH is not absolute and that absolute
prohibition is not contemplated by the Code:

a) Section 2 which requires adequate information and appropriate marketing

and distribution of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code The aim of the Code is to contribute to

the provision of safe and adequate nutrition for infants by the protection
and promotion of breastfeeding and by ensuring the proper use of
breastmilk substitutes and breastmilk supplements when these are
necessary, on the basis of adequate information and through appropriate
marketing and distribution.
 b) Section 3 which specifically states that the Code applies to the marketing of
and practices related to breastmilk substitutes, including infant formula, and to
information concerning their use;

c) Section 5(a) which provides that the government shall ensure that objective
and consistent information is provided on infant feeding;

d) Section 5(b) which provides that written, audio or visual informational and
educational materials shall not use any picture or text which may idealize the
use of breastmilk substitutes and should include information on the health
hazards of unnecessary or improper use of said product;

e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC
to review and examine advertising, promotion, and other marketing materials;

f) Section 8(b) which states that milk companies may provide information to
health professionals but such information should be restricted to factual and
scientific matters and shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding; and

g) Section 10 which provides that containers or labels should not contain

information that would discourage breastfeeding and idealize the use of infant
formula.

It is in this context that the Court now examines the assailed provisions of the RIRR
regarding labeling and advertising.

Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to
breastmilk; and b) that there be a statement that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used appropriately. Section
1657of the RIRR prohibits all health and nutrition claims for products within the
scope of the Milk Code, such as claims of increased emotional and intellectual abilities
of the infant and young child.

These requirements and limitations are consistent with the provisions of Section 8 of
the Milk Code, to wit:

SECTION 8. Health workers -

xxxx
 (b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters, and such information shall
not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding. It shall also include the information specified in Section
5.58 (Emphasis supplied)

and Section 10(d)59 which bars the use on containers and labels of the terms
"humanized," "maternalized," or similar terms.

These provisions of the Milk Code expressly forbid information that would imply or
create a belief that there is any milk product equivalent to breastmilk or which is
humanized or maternalized, as such information would be inconsistent with the
superiority of breastfeeding.

It may be argued that Section 8 of the Milk Code refers only to information given to
health workers regarding breastmilk substitutes, not to containers and labels thereof.
However, such restrictive application of Section 8(b) will result in the absurd situation
in which milk companies and distributors are forbidden to claim to health workers
that their products are substitutes or equivalents of breastmilk, and yet be allowed to
display on the containers and labels of their products the exact opposite message.
That askewed interpretation of the Milk Code is precisely what Section 5(a) thereof
seeks to avoid by mandating that all information regarding breastmilk vis-a-
vis breastmilk substitutes be consistent, at the same time giving the government
control over planning, provision, design, and dissemination of information on infant
feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels to state that the
product offered is not a substitute for breastmilk, is a reasonable means of enforcing
Section 8(b) of the Milk Code and deterring circumvention of the protection and
promotion of breastfeeding as embodied in Section 260 of the Milk Code.

Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It

implements Section 5(b) of the Milk Code which reads:

SECTION 5. x x x

xxxx

(b) Informational and educational materials, whether written, audio, or visual,

dealing with the feeding of infants and intended to reach pregnant women and
mothers of infants, shall include clear information on all the following points: x
 x x (5) where needed, the proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain information about
the use of infant formula, they shall include the social and financial implications
of its use; the health hazards of inappropriate foods or feeding methods;
and, in particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall not
use any picture or text which may idealize the use of breastmilk substitutes.
(Emphasis supplied)

The label of a product contains information about said product intended for the
buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and
Section 26 of the RIRR merely adds a fair warning about the likelihood of pathogenic
microorganisms being present in infant formula and other related products when
these are prepared and used inappropriately.

Petitioners counsel has admitted during the hearing on June 19, 2007 that formula
milk is prone to contaminations and there is as yet no technology that allows
production of powdered infant formula that eliminates all forms of contamination.62

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain
the message regarding health hazards including the possibility of contamination with
pathogenic microorganisms is in accordance with Section 5(b) of the Milk Code.

The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk

substitutes and supplements and related products cannot be questioned. It is its
intervention into the area of advertising, promotion, and marketing that is being
assailed by petitioner.

In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers.

(a) No advertising, promotion or other marketing materials, whether written,

audio or visual, for products within the scope of this Code shall be printed,
published, distributed, exhibited and broadcast unless such materials are duly
authorized and approved by an inter-agency committee created herein pursuant
to the applicable standards provided for in this Code.

the Milk Code invested regulatory authority over advertising, promotional and
marketing materials to an IAC, thus:

SECTION 12. Implementation and Monitoring -

 (a) For purposes of Section 6(a) of this Code, an inter-agency committee
composed of the following members is hereby created:

Minister of Health ------------------- Chairman

Minister of Trade and Industry ------------------- Member
Minister of Justice ------------------- Member
Minister of Social Services and ------------------- Member
Development

The members may designate their duly authorized representative to every

meeting of the Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing

materials, whether written, audio or visual, on products within the scope
of this Code;

(2) To approve or disapprove, delete objectionable portions from and

prohibit the printing, publication, distribution, exhibition and broadcast
of, all advertising promotion or other marketing materials, whether
written, audio or visual, on products within the scope of this Code;

(3) To prescribe the internal and operational procedure for the exercise
of its powers and functions as well as the performance of its duties and
responsibilities; and

(4) To promulgate such rules and regulations as are necessary or

proper for the implementation of Section 6(a) of this Code. x x x
(Emphasis supplied)

However, Section 11 of the RIRR, to wit:

SECTION 11. Prohibition No advertising, promotions, sponsorships, or

marketing materials and activities for breastmilk substitutes intended for infants
and young children up to twenty-four (24) months, shall be allowed, because
they tend to convey or give subliminal messages or impressions that undermine
breastmilk and breastfeeding or otherwise exaggerate breastmilk substitutes
 and/or replacements, as well as related products covered within the scope of
this Code.

prohibits advertising, promotions, sponsorships or marketing materials and activities

for breastmilk substitutes in line with the RIRRs declaration of principle under
Section 4(f), to wit:

SECTION 4. Declaration of Principles

xxxx

(f) Advertising, promotions, or sponsorships of infant formula, breastmilk

substitutes and other related products are prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only the
regulatory authority given to the IAC but also imposed absolute prohibition on
advertising, promotion, and marketing.

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk
Code in Section 6 thereof for prior approval by IAC of all advertising, marketing and
promotional materials prior to dissemination.

Even respondents, through the OSG, acknowledged the authority of IAC, and
repeatedly insisted, during the oral arguments on June 19, 2007, that the prohibition
under Section 11 is not actually operational, viz:

SOLICITOR GENERAL DEVANADERA:

xxxx

x x x Now, the crux of the matter that is being questioned by Petitioner is

whether or not there is an absolute prohibition on advertising making AO
2006-12 unconstitutional. We maintained that what AO 2006-12 provides is
not an absolute prohibition because Section 11 while it states and it is entitled
prohibition it states that no advertising, promotion, sponsorship or marketing
materials and activities for breast milk substitutes intended for infants and
young children up to 24 months shall be allowed because this is the standard
they tend to convey or give subliminal messages or impression undermine that
breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other
Section, Section 12, provides for the inter agency committee that is empowered
to process and evaluate all the advertising and promotion materials.

xxxx

What AO 2006-12, what it does, it does not prohibit the sale and manufacture,
it simply regulates the advertisement and the promotions of breastfeeding milk
substitutes.

xxxx

Now, the prohibition on advertising, Your Honor, must be taken together with
the provision on the Inter-Agency Committee that processes and evaluates
because there may be some information dissemination that are straight forward
information dissemination. What the AO 2006 is trying to prevent is any
material that will undermine the practice of breastfeeding, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has authority or
power to promulgate Rules and Regulations regarding the Advertising,
Promotion and Marketing of Breastmilk Substitutes?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency Committee, Your

Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

x x x Don't you think that the Department of Health overstepped its rule
making authority when it totally banned advertising and promotion under
Section 11 prescribed the total effect rule as well as the content of materials
under Section 13 and 15 of the rules and regulations?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, first we would like to stress that there is no total absolute
ban. Second, the Inter-Agency Committee is under the Department of Health,
Your Honor.

xxxx

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban
on advertising of breastmilk substitutes in the Revised Rules?

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

But, would you nevertheless agree that there is an absolute ban on advertising
of breastmilk substitutes intended for children two (2) years old and younger?

SOLICITOR GENERAL DEVANADERA:

It's not an absolute ban, Your Honor, because we have the Inter-Agency
Committee that can evaluate some advertising and promotional materials,
subject to the standards that we have stated earlier, which are- they should not
undermine breastfeeding, Your Honor.

xxxx

x x x Section 11, while it is titled Prohibition, it must be taken in relation with

the other Sections, particularly 12 and 13 and 15, Your Honor, because it is
recognized that the Inter-Agency Committee has that power to evaluate
promotional materials, Your Honor.

ASSOCIATE JUSTICE NAZARIO:

So in short, will you please clarify there's no absolute ban on advertisement

regarding milk substitute regarding infants two (2) years below?

SOLICITOR GENERAL DEVANADERA:

 We can proudly say that the general rule is that there is a prohibition, however,
we take exceptions and standards have been set. One of which is that, the
Inter-Agency Committee can allow if the advertising and promotions will not
undermine breastmilk and breastfeeding, Your Honor.63

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.

However, although it is the IAC which is authorized to promulgate rules and

regulations for the approval or rejection of advertising, promotional, or other
marketing materials under Section 12(a) of the Milk Code, said provision must be
related to Section 6 thereof which in turn provides that the rules and regulations must
be "pursuant to the applicable standards provided for in this Code." Said standards
are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk of being
repetitious, and for easy reference, are quoted hereunder:

SECTION 5. Information and Education

xxxx

(b) Informational and educational materials, whether written, audio, or visual,

dealing with the feeding of infants and intended to reach pregnant women and
mothers of infants, shall include clear information on all the following points:
(1) the benefits and superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative effect on
breastfeeding of introducing partial bottlefeeding; (4) the difficulty of reversing
the decision not to breastfeed; and (5) where needed, the proper use of infant
formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall
include the social and financial implications of its use; the health hazards of
inappropriate foods of feeding methods; and, in particular, the health hazards
of unnecessary or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text which may idealize
the use of breastmilk substitutes.

xxxx

SECTION 8. Health Workers.

xxxx

(b) Information provided by manufacturers and distributors to health

professionals regarding products within the scope of this Code shall be
 restricted to scientific and factual matters and such information shall not imply
or create a belief that bottle feeding is equivalent or superior to breastfeeding.
It shall also include the information specified in Section 5(b).

xxxx

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary

information about the appropriate use of the products, and in such a way as
not to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable and
understandable message in Pilipino or English printed on it, or on a label,
which message can not readily become separated from it, and which shall
include the following points:

(i) the words "Important Notice" or their equivalent;

(ii) a statement of the superiority of breastfeeding;

(iii) a statement that the product shall be used only on the advice of a
health worker as to the need for its use and the proper methods of use;
and

(iv) instructions for appropriate preparation, and a warning against the

health hazards of inappropriate preparation.

Section 12(b) of the Milk Code designates the DOH as the principal implementing
agency for the enforcement of the provisions of the Code. In relation to such
responsibility of the DOH, Section 5(a) of the Milk Code states that:

SECTION 5. Information and Education

(a) The government shall ensure that objective and consistent information is
provided on infant feeding, for use by families and those involved in the field
of infant nutrition. This responsibility shall cover the planning, provision,
design and dissemination of information, and the control thereof, on infant
nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational
terms the standards set forth in Sections 5, 8, and 10 of the Milk Code, by
which the IAC shall screen advertising, promotional, or other marketing
materials.

It is pursuant to such responsibility that the DOH correctly provided for Section 13 in
the RIRR which reads as follows:

SECTION 13. "Total Effect" - Promotion of products within the scope of this
Code must be objective and should not equate or make the product appear to
be as good or equal to breastmilk or breastfeeding in the advertising concept. It
must not in any case undermine breastmilk or breastfeeding. The "total effect"
should not directly or indirectly suggest that buying their product would
produce better individuals, or resulting in greater love, intelligence, ability,
harmony or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.

Such standards bind the IAC in formulating its rules and regulations on advertising,
promotion, and marketing. Through that single provision, the DOH exercises control
over the information content of advertising, promotional and marketing materials on
breastmilk vis-a-vis breastmilk substitutes, supplements and other related products. It
also sets a viable standard against which the IAC may screen such materials before
they are made public.

In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:

x x x [T]his Court had, in the past, accepted as sufficient standards the

following: "public interest," "justice and equity," "public convenience and
welfare," and "simplicity, economy and welfare."65

In this case, correct information as to infant feeding and nutrition is infused with
public interest and welfare.

4. With regard to activities for dissemination of information to health professionals,

the Court also finds that there is no inconsistency between the provisions of the Milk
Code and the RIRR. Section 7(b)66 of the Milk Code, in relation to Section 8(b)67 of
the same Code, allows dissemination of information to health professionals but
such information is restricted to scientific and factual matters.

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of
information to health professionals on scientific and factual matters. What it
prohibits is the involvement of the manufacturer and distributor of the products
covered by the Code in activities for the promotion, education and production of
Information, Education and Communication (IEC) materials regarding breastfeeding
that are intended for women and children. Said provision cannot be construed to
encompass even the dissemination of information to health professionals, as
restricted by the Milk Code.

5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk
manufacturers and distributors to extend assistance in research and in the continuing
education of health professionals, while Sections 22 and 32 of the RIRR absolutely
forbid the same. Petitioner also assails Section 4(i)69 of the RIRR prohibiting milk
manufacturers' and distributors' participation in any policymaking body in relation to
the advancement of breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives
should not form part of any policymaking body or entity in relation to the
advancement of breastfeeding. The Court finds nothing in said provisions which
contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it is the
DOH which shall be principally responsible for the implementation and
enforcement of the provisions of said Code. It is entirely up to the DOH to decide
which entities to call upon or allow to be part of policymaking bodies on
breastfeeding. Therefore, the RIRR's prohibition on milk companies participation in
any policymaking body in relation to the advancement of breastfeeding is in accord
with the Milk Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk
companies from giving reasearch assistance and continuing education to health
professionals. Section 2270 of the RIRR does not pertain to research assistance to
or the continuing education of health professionals; rather, it deals with
breastfeeding promotion and education for women and children. Nothing in
Section 22 of the RIRR prohibits milk companies from giving assistance for research
or continuing education to health professionals; hence, petitioner's argument against
this particular provision must be struck down.

It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections
of the RIRR provide that research assistance for health workers and researchers
may be allowed upon approval of an ethics committee, and with certain
disclosure requirements imposed on the milk company and on the recipient of
the research award.

The Milk Code endows the DOH with the power to determine how such research or
educational assistance may be given by milk companies or under what conditions
health workers may accept the assistance. Thus, Sections 9 and 10 of the RIRR
imposing limitations on the kind of research done or extent of assistance given by
milk companies are completely in accord with the Milk Code.

Petitioner complains that Section 3273 of the RIRR prohibits milk companies from
giving assistance, support, logistics or training to health workers. This provision is
within the prerogative given to the DOH under Section 8(e)74of the Milk Code, which
provides that manufacturers and distributors of breastmilk substitutes may assist in
researches, scholarships and the continuing education, of health professionals in
accordance with the rules and regulations promulgated by the Ministry of Health, now
DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with
the Milk Code. Section 6(f) of the Milk Code provides that donations may be made
by manufacturers and distributors of breastmilk substitutes upon the request or with
the approval of the DOH. The law does not proscribe the refusal of donations. The
Milk Code leaves it purely to the discretion of the DOH whether to request or accept
such donations. The DOH then appropriately exercised its discretion through Section
5175 of the RIRR which sets forth its policy not to request or approve donations from
manufacturers and distributors of breastmilk substitutes.

It was within the discretion of the DOH when it provided in Section 52 of the RIRR
that any donation from milk companies not covered by the Code should be coursed
through the IAC which shall determine whether such donation should be accepted or
refused. As reasoned out by respondents, the DOH is not mandated by the Milk
Code to accept donations. For that matter, no person or entity can be forced to
accept a donation. There is, therefore, no real inconsistency between the RIRR and
the law because the Milk Code does not prohibit the DOH from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions that
are not found in the Milk Code, the Court upholds petitioner's objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is

misplaced. The glaring difference in said case and the present case before the Court is
that, in the Civil Aeronautics Board, the Civil Aeronautics Administration (CAA)
was expressly granted by the law (R.A. No. 776) the power to impose fines and
civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law
the power to review on appeal the order or decision of the CAA and to determine
whether to impose, remit, mitigate, increase or compromise such fine and civil
penalties. Thus, the Court upheld the CAB's Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court
upheld the Department of Energy (DOE) Circular No. 2000-06-10
implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the
commission of prohibited acts. The Court found that nothing in the circular
contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and
R.A. No. 7638 to impose fines or penalties.

In the present case, neither the Milk Code nor the Revised Administrative Code
grants the DOH the authority to fix or impose administrative fines. Thus, without any
express grant of power to fix or impose such fines, the DOH cannot provide for
those fines in the RIRR. In this regard, the DOH again exceeded its authority by
providing for such fines or sanctions in Section 46 of the RIRR. Said provision is,
therefore, null and void.

The DOH is not left without any means to enforce its rules and regulations. Section
12(b) (3) of the Milk Code authorizes the DOH to "cause the prosecution of the
violators of this Code and other pertinent laws on products covered by this Code."
Section 13 of the Milk Code provides for the penalties to be imposed on violators of
the provision of the Milk Code or the rules and regulations issued pursuant to it, to
wit:

SECTION 13. Sanctions

(a) Any person who violates the provisions of this Code or the rules and
regulations issued pursuant to this Code shall, upon conviction, be
punished by a penalty of two (2) months to one (1) year imprisonment or a fine
of not less than One Thousand Pesos (P1,000.00) nor more than Thirty
Thousand Pesos (P30,000.00) or both. Should the offense be committed by a
juridical person, the chairman of the Board of Directors, the president, general
manager, or the partners and/or the persons directly responsible therefor, shall
be penalized.

(b) Any license, permit or authority issued by any government agency to any
health worker, distributor, manufacturer, or marketing firm or personnel for
the practice of their profession or occupation, or for the pursuit of their
business, may, upon recommendation of the Ministry of Health, be suspended
or revoked in the event of repeated violations of this Code, or of the rules and
regulations issued pursuant to this Code. (Emphasis supplied)

8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary
to the RIRR is frivolous.
Section 57 reads:

SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations
or parts thereof inconsistent with these revised rules and implementing
regulations are hereby repealed or modified accordingly.

Section 57 of the RIRR does not provide for the repeal of laws but only orders,
issuances and rules and regulations. Thus, said provision is valid as it is within the
DOH's rule-making power.

An administrative agency like respondent possesses quasi-legislative or rule-making

power or the power to make rules and regulations which results in delegated
legislation that is within the confines of the granting statute and the Constitution, and
subject to the doctrine of non-delegability and separability of powers.78 Such express
grant of rule-making power necessarily includes the power to amend, revise, alter, or
repeal the same.79 This is to allow administrative agencies flexibility in formulating and
adjusting the details and manner by which they are to implement the provisions of a
law,80 in order to make it more responsive to the times. Hence, it is a standard
provision in administrative rules that prior issuances of administrative agencies that
are inconsistent therewith are declared repealed or modified.

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH
to promulgate and in contravention of the Milk Code and, therefore, null and void.
The rest of the provisions of the RIRR are in consonance with the Milk Code.

Lastly, petitioner makes a "catch-all" allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents

is unnecessary and oppressive, and is offensive to the due process clause
of the Constitution, insofar as the same is in restraint of trade and because
a provision therein is inadequate to provide the public with a comprehensible
basis to determine whether or not they have committed a
violation.81 (Emphasis supplied)

Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the
provisions that suppress the trade of milk and, thus, violate the due process clause of
the Constitution.

The framers of the constitution were well aware that trade must be subjected to some
form of regulation for the public good. Public interest must be upheld over business
interests.90 In Pest Management Association of the Philippines v. Fertilizer and Pesticide
Authority,91 it was held thus:
 x x x Furthermore, as held in Association of Philippine Coconut Desiccators v.
Philippine Coconut Authority, despite the fact that "our present
Constitution enshrines free enterprise as a policy, it nonetheless reserves
to the government the power to intervene whenever necessary to
promote the general welfare." There can be no question that the unregulated
use or proliferation of pesticides would be hazardous to our environment.
Thus, in the aforecited case, the Court declared that "free enterprise does not
call for removal of protective regulations." x x x It must be clearly
explained and proven by competent evidence just exactly how such
protective regulation would result in the restraint of trade. [Emphasis and
underscoring supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers
participation in any policymaking body (Section 4(i)), classes and seminars for women
and children (Section 22); the giving of assistance, support and logistics or training
(Section 32); and the giving of donations (Section 52) would unreasonably hamper the
trade of breastmilk substitutes. Petitioner has not established that the proscribed
activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to
demonstrate that the aforementioned provisions of the RIRR are unreasonable and
oppressive for being in restraint of trade.

Petitioner also failed to convince the Court that Section 5(w) of the RIRR is
unreasonable and oppressive. Said section provides for the definition of the term
"milk company," to wit:

SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer,

distributor of infant formula, follow-up milk, milk formula, milk supplement,
breastmilk substitute or replacement, or by any other description of such
nature, including their representatives who promote or otherwise advance their
commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

(d) "Distributor" means a person, corporation or any other entity in the public
or private sector engaged in the business (whether directly or indirectly) of
marketing at the wholesale or retail level a product within the scope of this
Code. A "primary distributor" is a manufacturer's sales agent, representative,
national distributor or broker.

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

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

Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors, the Court sees no harm in the RIRR providing for
just one term to encompass both entities. The definition of "milk company" in the
RIRR and the definitions of "distributor" and "manufacturer" provided for under the
Milk Code are practically the same.

The Court is not convinced that the definition of "milk company" provided in the
RIRR would bring about any change in the treatment or regulation of "distributors"
and "manufacturers" of breastmilk substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective, purpose and intent of the Milk Code, constituting
reasonable regulation of an industry which affects public health and welfare and, as
such, the rest of the RIRR do not constitute illegal restraint of trade nor are they
violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46

of Administrative Order No. 2006-0012 dated May 12, 2006 are
declared NULL and VOID for being ultra vires. The Department of Health and
respondents are PROHIBITED from implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as
the rest of the provisions of Administrative Order No. 2006-0012 is concerned.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

BAYAN MUNA, as represented by G.R. No. 159618

Rep. SATUR OCAMPO, Rep.
CRISPIN BELTRAN, and Rep. Present:
LIZA L. MAZA,
Petitioner, CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
ALBERTO ROMULO, in his MENDOZA, and
capacity as Executive Secretary, and SERENO, JJ.
BLAS F. OPLE, in his capacity as
Secretary of Foreign Affairs, Promulgated:
Respondents.
February 1, 2011
x-----------------------------------------------------------------------------------------x

DECISION
VELASCO, JR., J.:

The Case

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

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

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome

Statute[3] establishing the International Criminal Court (ICC) with the power to exercise its
jurisdiction over persons for the most serious crimes of international concern x x x and shall be
complementary to the national criminal jurisdictions.[4] The serious crimes adverted to
cover those considered grave under international law, such as genocide, crimes against
humanity, war crimes, and crimes of aggression.[5]

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

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy

Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of
the non-surrender bilateral agreement (Agreement, hereinafter) between the USA and
the RP.

Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N BFO-
028-03, hereinafter), the RP, represented by then DFA Secretary Ople, agreed with
and accepted the US proposals embodied under the US Embassy Note adverted to
and put in effect the Agreement with the US government. In esse, the Agreement aims to
protect what it refers to and defines as persons of the RP and US from frivolous and
harassment suits that might be brought against them in international tribunals.[8] It is
reflective of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements have been
effected by and between the US and 33 other countries.[9]

The Agreement pertinently provides as follows:

 1. For purposes of this Agreement, persons are current or former
Government officials, employees (including contractors), or military
personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall

not, absent the express consent of the first Party,

(a) be surrendered or transferred by any means to any

international tribunal for any purpose, unless such tribunal has
been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity

or third country, or expelled to a third country, for the
purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the UN
Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a

person of the Philippines to a third country, the [US] will not agree to
the surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of
the Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a

person of the [USA] to a third country, the [GRP] will not agree to the
surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the
UN Security Council, absent the express consent of the Government of
the [US].

5. This Agreement shall remain in force until one year after the
date on which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply
with respect to any act occurring, or any allegation arising, before the
effective date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the

status of the non-surrender agreement, Ambassador Ricciardone replied in his letter
of October 28, 2003 that the exchange of diplomatic notes constituted a legally
binding agreement under international law; and that, under US law, the said agreement
did not require the advice and consent of the US Senate.[10]

In this proceeding, petitioner imputes grave abuse of discretion to respondents

in concluding and ratifying the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioners standing to maintain a suit and
counter that the Agreement, being in the nature of an executive agreement, does not
require Senate concurrence for its efficacy. And for reasons detailed in their comment,
respondents assert the constitutionality of the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA]

SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION
FOR CONCLUDING THE RP-US NON SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13
MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE OF THE
[ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY
THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents
gravely abused their discretion when they capriciously abandoned,
waived and relinquished our only legitimate recourse through
the Rome Statute of the [ICC] to prosecute and try persons as
defined in the x x x Agreement, x x x or literally any conduit of
American interests, who have committed crimes of genocide,
crimes against humanity, war crimes and the crime of aggression,
thereby abdicating Philippine Sovereignty.

B. Whether after the signing and pending ratification of the Rome

Statute of the [ICC] the [RP] President and the [DFA] Secretary x x
x are obliged by the principle of good faith to refrain from doing
all acts which would substantially impair the value of the
undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats

the object and purpose of the Rome Statute of the International
 Criminal Court and contravenes the obligation of good faith
inherent in the signature of the President affixed on the Rome
Statute of the International Criminal Court, and if so whether the x x
x Agreement is void and unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void and

unenforceable for grave abuse of discretion amounting to lack or
excess of jurisdiction in connection with its execution.

II. WHETHER THE RP-US NON SURRENDER

AGREEMENT IS VOID AB INITIO FOR CONTRACTING
OBLIGATIONS THAT ARE EITHER IMMORAL OR
OTHERWISE AT VARIANCE WITH UNIVERSALLY
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING

AND EFFECTIVE WITHOUT THE CONCURRENCE BY AT
LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE
SENATE x x x.[11]

The foregoing issues may be summarized into two: first, whether or not
the Agreement was contracted validly, which resolves itself into the question of whether
or not respondents gravely abused their discretion in concluding it; and second,
whether or not the Agreement, which has not been submitted to the Senate for
concurrence, contravenes and undermines the Rome Statute and other treaties. But
because respondents expectedly raised it, we shall first tackle the issue of petitioners
legal standing.
The Courts Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of
the validity or invalidity of the Agreement carries with it constitutional significance and
is of paramount importance that justifies its standing. Cited in this regard is what is
usually referred to as the emergency powers cases,[12] in which ordinary citizens and
taxpayers were accorded the personality to question the constitutionality of executive
issuances.
 Locus standi is a right of appearance in a court of justice on a given
question.[13] Specifically, it is a partys personal and substantial interest in a case where
he has sustained or will sustain direct injury as a result[14] of the act being challenged,
and calls for more than just a generalized grievance.[15] The term interest refers to
material interest, as distinguished from one that is merely incidental.[16] The rationale
for requiring a party who challenges the validity of a law or international agreement to
allege such a personal stake in the outcome of the controversy is to assure the
concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions.[17]

Locus standi, however, is merely a matter of procedure and it has been

recognized that, in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act, but by
concerned citizens, taxpayers, or voters who actually sue in the public
interest.[18] Consequently, in a catena of cases,[19] this Court has invariably adopted a
liberal stance on locus standi.

Going by the petition, petitioners representatives pursue the instant suit

primarily as concerned citizens raising issues of transcendental importance, both for
the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other government

action, a petitioner needs to meet certain specific requirements before he can be
clothed with standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.[20] expounded on this requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and

legislators when specific requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be
able to show, not only that the law or any government act is invalid, but
also that he sustained or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or privilege to
which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of. In
fine, when the proceeding involves the assertion of a public right, the
 mere fact that he is a citizen satisfies the requirement of personal
interest.[21]

In the case at bar, petitioners representatives have complied with the qualifying
conditions or specific requirements exacted under the locus standi rule. As citizens,
their interest in the subject matter of the petition is direct and personal. At the very
least, their assertions questioning the Agreement are made of a public right, i.e., to
ascertain that the Agreement did not go against established national policies, practices,
and obligations bearing on the States obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of the

issue at hand impels the Court to brush aside the procedural barrier posed by the
traditional requirement of locus standi, as we have done in a long line of earlier cases,
notably in the old but oft-cited emergency powers cases[22] and Kilosbayan v. Guingona,
Jr.[23] In cases of transcendental importance, we wrote again in Bayan v. Zamora,[24] The
Court may relax the standing requirements and allow a suit to prosper even where
there is no direct injury to the party claiming the right of judicial review.

Moreover, bearing in mind what the Court said in Taada v. Angara, that it will
not shirk, digress from or abandon its sacred duty and authority to uphold the
Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or department of
the government,[25] we cannot but resolve head on the issues raised before us. Indeed,
where an action of any branch of government is seriously alleged to have infringed the
Constitution or is done with grave abuse of discretion, it becomes not only the right
but in fact the duty of the judiciary to settle it. As in this petition, issues are precisely
raised putting to the fore the propriety of the Agreement pending the ratification of the
Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioners initial challenge against the Agreement relates to form, its threshold
posture being that E/N BFO-028-03 cannot be a valid medium for concluding
the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized
international doctrines, practices, and jargonsis untenable. One of these is the doctrine
of incorporation, as expressed in Section 2, Article II of the Constitution, wherein the
Philippines adopts the generally accepted principles of international law and
international jurisprudence as part of the law of the land and adheres to the policy of
peace, cooperation, and amity with all nations.[26] An exchange of notes falls into the
category of inter-governmental agreements,[27] which is an internationally accepted
form of international agreement. The United Nations Treaty Collections (Treaty
Reference Guide) defines the term as follows:

An exchange of notes is a record of a routine agreement, that has

many similarities with the private law contract.The agreement consists of
the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other. Under
the usual procedure, the accepting State repeats the text of the offering
State to record its assent. The signatories of the letters may be
government Ministers, diplomats or departmental heads. The technique
of exchange of notes is frequently resorted to, either because of its
speedy procedure, or, sometimes, to avoid the process of legislative
approval.[28]

In another perspective, the terms exchange of notes and executive agreements

have been used interchangeably, exchange of notes being considered a form of
executive agreement that becomes binding through executive action.[29] On the other
hand, executive agreements concluded by the President sometimes take the form of
exchange of notes and at other times that of more formal documents denominated
agreements or protocols.[30] As former US High Commissioner to the Philippines
Francis B. Sayre observed in his work, The Constitutionality of TradeAgreement Acts:
The point where ordinary correspondence between this and other
governments ends and agreements whether denominated executive
agreements or exchange of notes or otherwise begin, may sometimes be
difficult of ready ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it
viewed as the Non-Surrender Agreement itself, or as an integral instrument of
acceptance thereof or as consent to be boundis a recognized mode of concluding a
legally binding international written contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as

an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.[32] International agreements may
be in the form of (1) treaties that require legislative concurrence after executive
ratification; or (2) executive agreements that are similar to treaties, except that they do
not require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.[33]

Under international law, there is no difference between treaties and executive

agreements in terms of their binding effects on the contracting states concerned,[34] as
long as the negotiating functionaries have remained within their
powers.[35] Neither, on the domestic sphere, can one be held valid if it violates the
Constitution.[36] Authorities are, however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement aspect.[37] As has been
observed by US constitutional scholars, a treaty has greater dignity than an executive
agreement, because its constitutional efficacy is beyond doubt, a treaty having behind
it the authority of the President, the Senate, and the people;[38] a ratified treaty, unlike
an executive agreement, takes precedence over any prior statutory enactment.[39]

Petitioner parlays the notion that the Agreement is of dubious validity, partaking
as it does of the nature of a treaty; hence, it must be duly concurred in by the
Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern Sea Trading, in
which the Court reproduced the following observations made by US legal scholars:
[I]nternational agreements involving political issues or changes of national policy and
those involving international arrangements of a permanent character usually take the
form of treaties [while] those embodying adjustments of detail carrying out well
established national policies and traditions and those involving arrangements of a
more or less temporary nature take the form of executive agreements. [40]

Pressing its point, petitioner submits that the subject of the Agreement does not
fall under any of the subject-categories that are enumerated in the Eastern Sea
Trading case, and that may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights, trademark
and copyright protection, postal and navigation arrangements and settlement of
claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI
of Zambales and Merchant,[41] holding that an executive agreement through an exchange
of notes cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international

agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard
and fast rules on the propriety of entering, on a given subject, into a treaty or an
executive agreement as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties intent and desire to
craft an international agreement in the form they so wish to further their respective
interests. Verily, the matter of form takes a back seat when it comes to effectiveness
and binding effect of the enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under the pacta sunt
servanda[42] principle.

As may be noted, almost half a century has elapsed since the Court rendered its
decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has become
more complex and the domain of international law wider, as to include such subjects
as human rights, the environment, and the sea. In fact, in the US alone, the executive
agreements executed by its President from 1980 to 2000 covered subjects such as
defense, trade, scientific cooperation, aviation, atomic energy, environmental
cooperation, peace corps, arms limitation, and nuclear safety, among others. [43] Surely,
the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on
the matter of which the international agreement format would be convenient to serve
its best interest. As Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large
variety of executive agreements as such concluded from time to time.
Hundreds of executive agreements, other than those entered into under
the trade-agreement act, have been negotiated with foreign governments.
x x x They cover such subjects as the inspection of vessels, navigation
dues, income tax on shipping profits, the admission of civil air craft,
custom matters and commercial relations generally, international claims,
postal matters, the registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-

authorized[44] or a treaty-implementing executive agreement,[45] which necessarily
would cover the same matters subject of the underlying treaty.

But over and above the foregoing considerations is the fact thatsave for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution[46]when
a treaty is required, the Constitution does not classify any subject, like that involving
political issues, to be in the form of, and ratified as, a treaty. What the Constitution
merely prescribes is that treaties need the concurrence of the Senate by a vote defined
therein to complete the ratification process.

Petitioners reliance on Adolfo[47] is misplaced, said case being inapplicable owing

to different factual milieus.There, the Court held that an executive agreement cannot
be used to amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an
executive agreement that does not require the concurrence of the Senate for its
ratification may not be used to amend a treaty that, under the Constitution, is the
product of the ratifying acts of the Executive and the Senate. The presence of a treaty,
purportedly being subject to amendment by an executive agreement, does not obtain
under the premises.

Considering the above discussion, the Court need not belabor at length the
third main issue raised, referring to the validity and effectivity of the Agreement without
the concurrence by at least two-thirds of all the members of the Senate. The Court
has, in Eastern Sea Trading,[48] as reiterated in Bayan,[49] given recognition to the
obligatory effect of executive agreements without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding

agreements without the necessity of subsequent Congressional approval
has been confirmed by long usage. From the earliest days of our history,
we have entered executive agreements covering such subjects as
commercial and consular relations, most favored-nation rights, patent
rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has
never been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioners next contention that the Agreement undermines the

establishment of the ICC and is null and void insofar as it unduly restricts the ICCs
jurisdiction and infringes upon the effectivity of the Rome Statute.Petitioner posits
that the Agreement was constituted solely for the purpose of providing individuals or
groups of individuals with immunity from the jurisdiction of the ICC; and such grant
of immunity through non-surrender agreements allegedly does not legitimately fall
within the scope of Art. 98 of the Rome Statute. It concludes that state parties with
non-surrender agreements are prevented from meeting their obligations under the
Rome Statute, thereby constituting a breach of Arts. 27,[50] 86,[51] 89[52] and
90[53] thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to
ensure that those responsible for the worst possible crimes are brought to justice in all
cases, primarily by states, but as a last resort, by the ICC; thus, any agreementlike the
non-surrender agreementthat precludes the ICC from exercising its complementary
function of acting when a state is unable to or unwilling to do so, defeats the object
and purpose of the Rome Statute.
 Petitioner would add that the President and the DFA Secretary, as
representatives of a signatory of the Rome Statute, are obliged by the imperatives of
good faith to refrain from performing acts that substantially devalue the purpose and
object of the Statute, as signed. Adding a nullifying ingredient to the Agreement,
according to petitioner, is the fact that it has an immoral purpose or is otherwise at
variance with a priorly executed treaty.

Contrary to petitioners pretense, the Agreement does not contravene or

undermine, nor does it differ from, the Rome Statute. Far from going against each
other, one complements the other. As a matter of fact, the principle of
complementarity underpins the creation of the ICC. As aptly pointed out by
respondents and admitted by petitioners, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions [of the signatory states].[54] Art. 1 of
the Rome Statute pertinently provides:

Article 1

The Court

An International Crimininal Court (the Court) is hereby

established. It x x x shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to
national criminal jurisdictions. The jurisdiction and functioning of the
Court shall be governed by the provisions of this Statute. (Emphasis
ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that
it is the duty of every State to exercise its criminal jurisdiction over those responsible
for international crimes. This provision indicates that primary jurisdiction over the so-
called international crimes rests, at the first instance, with the state where the crime
was committed; secondarily, with the ICC in appropriate situations contemplated
under Art. 17, par. 1[55] of the RomeStatute.

Of particular note is the application of the principle of ne bis in idem[56] under

par. 3 of Art. 20, Rome Statute, which again underscores the primacy of the
jurisdiction of a state vis-a-vis that of the ICC. As far as relevant, the provision states
that no person who has been tried by another court for conduct x x x [constituting
crimes within its jurisdiction] shall be tried by the [International Criminal] Court with
respect to the same conduct x x x.

The foregoing provisions of the Rome Statute, taken collectively, argue against
the idea of jurisdictional conflict between the Philippines, as party to the non-
surrender agreement, and the ICC; or the idea of the Agreementsubstantially impairing
the value of the RPs undertaking under the Rome Statute. Ignoring for a while the
fact that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear
to us that the Rome Statute expressly recognizes the primary jurisdiction of states, like
the RP, over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the signatory
states are unwilling or unable to prosecute.

Given the above consideration, petitioners suggestionthat the RP, by entering

into the Agreement, violated its duty required by the imperatives of good faith and
breached its commitment under the Vienna Convention[57] to refrain from performing
any act tending to impair the value of a treaty, e.g., the Rome Statutehas to be rejected
outright. For nothing in the provisions of the Agreement, in relation to the Rome
Statute, tends to diminish the efficacy of the Statute, let alone defeats the purpose of
the ICC. Lest it be overlooked, the Rome Statute contains a proviso that enjoins the
ICC from seeking the surrender of an erring person, should the process require the
requested state to perform an act that would violate some international agreement it
has entered into. We refer to Art. 98(2) of the Rome Statute, which reads:

Article 98

Cooperation with respect to waiver of immunity

and consent to surrender

xxxx

2. The Court may not proceed with a request for surrender

which would require the requested State to act inconsistently with its
obligations under international agreements pursuant to which the
consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation
of the sending State for the giving of consent for the surrender.
 Moreover, under international law, there is a considerable difference between a
State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of
Treaties, a signatory state is only obliged to refrain from acts which would defeat the
object and purpose of a treaty;[58] whereas a State-Party, on the other hand, is legally
obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to
the Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it
is only obliged to refrain from acts which would defeat the object and purpose of the
Rome Statute. Any argument obliging the Philippines to follow any provision in the
treaty would be premature.

As a result, petitioners argument that State-Parties with non-surrender

agreements are prevented from meeting their obligations under the Rome Statute,
specifically Arts. 27, 86, 89 and 90, must fail. These articles are only legally binding
upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is
not incompatible with the Rome Statute. Specifically, Art. 90(4) provides that [i]f the
requesting State is a State not Party to this Statute the requested State, if it is not
under an international obligation to extradite the person to the requesting State, shall
give priority to the request for surrender from the Court. x x x In applying the
provision, certain undisputed facts should be pointed out: first, the US is neither a
State-Party nor a signatory to the Rome Statute; and second, there is an international
agreement between the US and the Philippines regarding extradition or surrender of
persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party,
the Rome Statute still recognizes the primacy of international agreements entered into
between States, even when one of the States is not a State-Party to the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its
sovereignty by bargaining away the jurisdiction of the ICC to prosecute US nationals,
government officials/employees or military personnel who commit serious crimes of
international concerns in the Philippines. Formulating petitioners argument a bit
differently, the RP, by entering into the Agreement, does thereby abdicate its
sovereignty, abdication being done by its waiving or abandoning its right to seek
recourse through the Rome Statute of the ICC for erring Americans committing
international crimes in the country.
 We are not persuaded. As it were, the Agreement is but a form of affirmance and
confirmance of the Philippinesnational criminal jurisdiction. National criminal
jurisdiction being primary, as explained above, it is always the responsibility and
within the prerogative of the RP either to prosecute criminal offenses equally covered
by the Rome Statute or to accede to the jurisdiction of the ICC. Thus,
the Philippines may decide to try persons of the US, as the term is understood in
the Agreement, under our national criminal justice system. Or it may opt not to exercise
its criminal jurisdiction over its erring citizens or over US persons committing high
crimes in the country and defer to the secondary criminal jurisdiction of the ICC over
them. As to persons of the US whom the Philippines refuses to prosecute, the
country would, in effect, accord discretion to the US to exercise either its national
criminal jurisdiction over the person concerned or to give its consent to the referral of
the matter to the ICC for trial. In the same breath, the US must extend the same
privilege to the Philippines with respect to persons of the RP committing high crimes
within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to

the Philippines agreeing to undertake the things set forth in the Agreement. Surely, one
State can agree to waive jurisdictionto the extent agreed uponto subjects of another
State due to the recognition of the principle of extraterritorial immunity. What the
Court wrote in Nicolas v. Romulo[59]a case involving the implementation of the criminal
jurisdiction provisions of the RP-US Visiting Forces Agreementis apropos:

Nothing in the Constitution prohibits such agreements

recognizing immunity from jurisdiction or some aspects of jurisdiction
(such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed
forces contingents of a foreign State allowed to enter another States
territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be

predicated on the postulate that some of its provisions constitute a virtual abdication
of its sovereignty. Almost every time a state enters into an international agreement, it
voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not
envision a reclusive Philippines isolated from the rest of the world. It even adheres, as
earlier stated, to the policy of cooperation and amity with all nations.[60]

By their nature, treaties and international agreements actually have a limiting

effect on the otherwise encompassing and absolute nature of sovereignty. By their
voluntary act, nations may decide to surrender or waive some aspects of their state
power or agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction.The usual underlying consideration in this partial surrender may be the
greater benefits derived from a pact or a reciprocal undertaking of one contracting
party to grant the same privileges or immunities to the other. On the rationale that the
Philippines has adopted the generally accepted principles of international law as part
of the law of the land, a portion of sovereignty may be waived without violating the
Constitution.[61] Such waiver does not amount to an unconstitutional diminution or
deprivation of jurisdiction of Philippine courts.[62]

Agreement Not Immoral/Not at Variance

with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing
immoral obligations and/or being at variance with allegedly universally recognized
principles of international law. The immoral aspect proceeds from the fact that
the Agreement, as petitioner would put it, leaves criminals immune from responsibility
for unimaginable atrocities that deeply shock the conscience of humanity; x x x it
precludes our country from delivering an American criminal to the [ICC] x x x.[63]

The above argument is a kind of recycling of petitioners earlier position, which,

as already discussed, contends that the RP, by entering into the Agreement, virtually
abdicated its sovereignty and in the process undermined its treaty obligations under
the Rome Statute, contrary to international law principles.[64]

The Court is not persuaded. Suffice it to state in this regard that the non-
surrender agreement, as aptly described by the Solicitor General, is an assertion by
the Philippines of its desire to try and punish crimes under its national law. x x x The
agreement is a recognition of the primacy and competence of the countrys judiciary to
try offenses under its national criminal laws and dispense justice fairly and judiciously.

Petitioner, we believe, labors under the erroneous impression that

the Agreement would allow Filipinos and Americans committing high crimes of
international concern to escape criminal trial and punishment. This is manifestly
incorrect. Persons who may have committed acts penalized under the Rome Statute
can be prosecuted and punished in the Philippines or in the US; or with the consent
of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities
necessary to bind both countries to the Rome Statute have been met. For perspective,
what the Agreement contextually prohibits is the surrender by either party of individuals
to international tribunals, like the ICC, without the consent of the other party, which
may desire to prosecute the crime under its existing laws. With the view we take of
things, there is nothing immoral or violative of international law concepts in the act of
the Philippines of assuming criminal jurisdiction pursuant to the non-surrender
agreement over an offense considered criminal by both Philippine laws and the Rome
Statute.
No Grave Abuse of Discretion

Petitioners final point revolves around the necessity of the Senates concurrence
in the Agreement. And without specifically saying so, petitioner would argue that the
non-surrender agreement was executed by the President, thru the DFA Secretary, in
grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture
of petitioner, the same having been discussed at length earlier on. As to the second
portion, We wish to state that petitioner virtually faults the President for performing,
through respondents, a task conferred the President by the Constitutionthe power to
enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as
head of state and government, is the sole organ and authority in the external affairs of
the country.[65] The Constitution vests in the President the power to enter into
international agreements, subject, in appropriate cases, to the required concurrence
votes of the Senate. But as earlier indicated, executive agreements may be validly
entered into without such concurrence. As the President wields vast powers and
influence, her conduct in the external affairs of the nation is, as Bayan would put it,
executive altogether. The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.[66]

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then

President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs,
acted within the scope of the authority and discretion vested in her by the
Constitution. At the end of the day, the Presidentby ratifying, thru her deputies, the
non-surrender agreementdid nothing more than discharge a constitutional duty and
exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the
other issues raised herein, it may perhaps be pertinent to remind all and sundry that
about the time this petition was interposed, such issue of ratification was laid to rest
in Pimentel, Jr. v. Office of the Executive Secretary.[67] As the Court emphasized in said case,
the power to ratify a treaty, the Statute in that instance, rests with the President,
subject to the concurrence of the Senate, whose role relative to the ratification of a
treaty is limited merely to concurring in or withholding the ratification. And
concomitant with this treaty-making power of the President is his or her prerogative
to refuse to submit a treaty to the Senate; or having secured the latters consent to the
ratification of the treaty, refuse to ratify it.[68] This prerogative, the Court hastened to
add, is the Presidents alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just a
signatory to the Rome Statute.Under Art. 125[69] thereof, the final acts required to
complete the treaty process and, thus, bring it into force, insofar as the Philippines is
concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act
No. (RA) 9851, otherwise known as the Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against
Humanity. Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

Section 17. Jurisdiction. x x x x

In the interest of justice, the relevant Philippine
authorities may dispense with the investigation or prosecution of a
crime punishable under this Act if another court or international tribunal
is already conducting the investigation or undertaking the prosecution of
such crime. Instead, the authorities may surrender or extradite
suspected or accused persons in the Philippines to the appropriate
international court, if any, or to another State pursuant to the
applicable extradition laws and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the
States obligation in relation to grave crimes against the law of nations, i.e., genocide,
crimes against humanity and war crimes. Relying on the above-quoted statutory
proviso, the view posits that the Philippine is required to surrender to the proper
international tribunal those persons accused of the grave crimes defined under RA
9851, if it does not exercise its primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to
prosecute a foreign national for violations of RA 9851, the Philippines has only two
options, to wit: (1) surrender the accused to the proper international tribunal; or (2)
surrender the accused to another State if such surrender is pursuant to the applicable
extradition laws and treaties. But the Philippines may exercise these options only in
cases where another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime; otherwise,
the Philippines must prosecute the crime before its own courts pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international

tribunal for any crime under RA 9851, the Philippines has the option to surrender
such US national to the international tribunal if it decides not to prosecute
such US national here. The view asserts that this option of the Philippines under Sec.
17 of RA 9851 is not subject to the consent of the US, and any derogation of Sec. 17
of RA 9851, such as requiring the consent of the USbefore the Philippines can
exercise such option, requires an amendatory law. In line with this scenario, the view
strongly argues that the Agreement prevents the Philippineswithout the consent of
the USfrom surrendering to any international tribunal US nationals accused of crimes
covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently,
the view is strongly impressed that the Agreement cannot be embodied in a simple
executive agreement in the form of an exchange of notes but must be implemented
through an extradition law or a treaty with the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the
Constitution, where the Philippinesadopts, as a national policy, the generally
accepted principles of international law as part of the law of the land, the Court
is further impressed to perceive the Rome Statute as declaratory of customary
international law. In other words, the Statute embodies principles of law which
constitute customary international law or custom and for which reason it assumes the
status of an enforceable domestic law in the context of the aforecited constitutional
provision.As a corollary, it is argued that any derogation from the Rome Statute
principles cannot be undertaken via a mere executive agreement, which, as an
exclusive act of the executive branch, can only implement, but cannot amend or
repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate the
objects of the principles of law or alters customary rules embodied in the Rome
Statute.

Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of
the nature of a municipal law that can amend or supersede another law, in this
instance Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of
enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to RA 9851. For another, the view does
not clearly state what precise principles of law, if any, the Agreement alters. And for a
third, it does not demonstrate in the concrete how the Agreement seeks to frustrate the
objectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome
Statute as the former merely reinforces the primacy of the national jurisdiction of
the US and the Philippines in prosecuting criminal offenses committed by their
respective citizens and military personnel, among others. The jurisdiction of the ICC
pursuant to the Rome Statute over high crimes indicated thereat is clearly and
unmistakably complementary to the national criminal jurisdiction of the signatory
states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against
international humanitarian law, genocide and other crimes against humanity;[70] (2)
provides penal sanctions and criminal liability for their commission; [71] and (3)
establishes special courts for the prosecution of these crimes and for the State to
exercise primary criminal jurisdiction.[72] Nowhere in RA 9851 is there a proviso that
goes against the tenor of the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851
as requiring the Philippine State to surrender to the proper international tribunal
those persons accused of crimes sanctioned under said law if it does not exercise its
primary jurisdiction to prosecute such persons. This view is not entirely correct, for
the above quoted proviso clearly provides discretion to the Philippine State on
whether to surrender or not a person accused of the crimes under RA 9851. The
statutory proviso uses the word may. It is settled doctrine in statutory construction
that the word may denotes discretion, and cannot be construed as having mandatory
effect.[73] Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is simply
permissive on the part of the Philippine State.

Besides, even granting that the surrender of a person is mandatorily required

when the Philippines does not exercise its primary jurisdiction in cases where another
court or international tribunal is already conducting the investigation or undertaking
the prosecution of such crime, still, the tenor of the Agreement is not repugnant to Sec.
17 of RA 9851. Said legal proviso aptly provides that the surrender may be made to
another State pursuant to the applicable extradition laws and
treaties. The Agreement can already be considered a treaty following this Courts
decision in Nicolas v. Romulo[74] which cited Weinberger v. Rossi.[75] In Nicolas, We held
that an executive agreement is a treaty within the meaning of that word in
international law and constitutes enforceable domestic law vis--vis the United States.[76]
 Likewise, the Philippines and the US already have an existing extradition
treaty, i.e., RP-US Extradition Treaty, which was executed on November 13, 1994.
The pertinent Philippine law, on the other hand, is Presidential Decree No. 1069,
issued on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US
Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.

The views reliance on Suplico v. Neda[77] is similarly improper. In that case,

several petitions were filed questioning the power of the President to enter into
foreign loan agreements. However, before the petitions could be resolved by the
Court, the Office of the Solicitor General filed a Manifestation and Motion averring
that the Philippine Government decided not to continue with the ZTE National
Broadband Network Project, thus rendering the petition moot. In resolving the case,
the Court took judicial notice of the act of the executive department of
the Philippines (the President) and found the petition to be indeed moot. Accordingly,
it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal
implications of an executive agreement. He stated that an executive agreement has the
force and effect of law x x x [it] cannot amend or repeal prior laws.[78] Hence, this
argument finds no application in this case seeing as RA 9851 is a subsequent law, not
a prior one. Notably, this argument cannot be found in the ratio decidendi of the case,
but only in the dissenting opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to
RA 9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n
offense shall be an extraditable offense if it is punishable under the laws in both
Contracting Parties x x x,[79] and thereby concluding that while the Philippines has
criminalized under RA 9851 the acts defined in the Rome Statute as war crimes,
genocide and other crimes against humanity, there is no similar legislation in the US.
It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in
the federal courts for an international crime unless Congress adopts a law defining
and punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high
crimes mentioned earlier. In fact, as early as October 2006, the US enacted a law
criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the United
States Code Annotated (USCA) provides for the criminal offense of war crimes which
is similar to the war crimes found in both the Rome Statute and RA 9851, thus:
 (a) Offense Whoever, whether inside or outside the United States,
commits a war crime, in any of the circumstances described in
subsection (b), shall be fined under this title or imprisoned for life or
any term of years, or both, and if death results to the victim, shall also
be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are
that the person committing such war crime or the victim of such war
crime is a member of the Armed Forces of the United States or a
national of the United States (as defined in Section 101 of the
Immigration and Nationality Act).
(c) Definition As used in this Section the term war crime means any
conduct
(1) Defined as a grave breach in any of the international
conventions signed at Geneva 12 August 1949, or any protocol to
such convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the
Hague Convention IV, Respecting the Laws and Customs of War
on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as
defined in subsection [d]) when committed in the context of and
in association with an armed conflict not of an international
character; or
(4) Of a person who, in relation to an armed conflict and contrary
to the provisions of the Protocol on Prohibitions or Restrictions
on the Use of Mines, Booby-Traps and Other Devices as
amended at Geneva on 3 May 1996 (Protocol II as amended on 3
May 1996), when the United States is a party to such Protocol,
willfully kills or causes serious injury to civilians.[80]

Similarly, in December 2009, the US adopted a law that criminalized genocide,

to wit:

1091. Genocide

(a) Basic Offense Whoever, whether in the time of

peace or in time of war and with specific intent to destroy, in
whole or in substantial part, a national, ethnic, racial or religious
group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
 (3) causes the permanent impairment of the mental faculties
of members of the group through drugs, torture, or similar
techniques;
(4) subjects the group to conditions of life that are intended
to cause the physical destruction of the group in whole or in
part;
(5) imposes measures intended to prevent births within the
group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).[81]

Arguing further, another view has been advanced that the current US laws do
not cover every crime listed within the jurisdiction of the ICC and that there is a gap
between the definitions of the different crimes under the USlaws versus the Rome
Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas,
entitled On Trial: The US Military and the International Criminal Court, as its basis.

At the outset, it should be pointed out that the report used may not have any weight
or value under international law. Article 38 of the Statute of the International Court of
Justice (ICJ) lists the sources of international law, as follows: (1) international
conventions, whether general or particular, establishing rules expressly recognized by
the contesting states; (2) international custom, as evidence of a general practice
accepted as law; (3) the general principles of law recognized by civilized nations; and
(4) subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law. The report does not fall under any of the foregoing
enumerated sources. It cannot even be considered as the teachings of highly qualified
publicists. A highly qualified publicist is a scholar of public international law and the
term usually refers to legal scholars or academic writers.[82] It has not been shown that
the authors[83] of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the
definitions of the crimes are nonexistent. To highlight, the table below shows the
definitions of genocide and war crimes under the Rome Statute vis--vis the definitions
under US laws:

Rome Statute US Law

Article 6 1091. Genocide
Genocide
For the purpose of this Statute,
genocide means any of the following
acts committed with intent to destroy,
in whole or in part, a national,
ethnical, racial or religious group, as
such:
(a) Killing members of the group;
(b) Causing serious bodily or mental
harm to members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to
bring about its physical destruction
in whole or in part;
(d) Imposing measures intended to
prevent births within the group;
(e) Forcibly transferring children of
the group to another group.
Article 8
War Crimes
2. For the purpose of this Statute, war
crimes means:
(a) Grave breaches of the Geneva
Conventions of 12 August 1949,
namely, any of the following acts
against persons or property protected
under the provisions of the relevant
Geneva Convention: x x x[84]
(b) Other serious violations of the
laws and customs applicable in
international armed conflict, within
the established framework of
international law, namely, any of the
following acts:
(a) Basic Offense Whoever, whether
in the time of peace or in time of war
and with specific intent to destroy, in
whole or in substantial part, a national,
ethnic, racial or religious group as
such
(1) kills members of that group;
(2) causes serious bodily injury to
members of that group;
(3) causes the permanent impairment
of the mental faculties of
members of the group through
drugs, torture, or similar
techniques;
(4) subjects the group to conditions of
life that are intended to cause the
physical destruction of the group
in whole or in part;
(5) imposes measures intended to
prevent births within the group;
or
(6) transfers by force children of the
group to another group;
shall be punished as provided in
subsection (b).
(a) Definition As used in this
Section the term war crime means
any conduct
(1) Defined as a grave breach in
any of the international
conventions signed at Geneva12
August 1949, or any protocol to
such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27
or 28 of the Annex to the
Hague Convention IV,
Respecting the Laws and
Customs of War on Land, signed
18 October 1907;
(3) Which constitutes a grave
xxxx
(c) In the case of an armed conflict
not of an international character,
serious violations of article 3 common
to the four Geneva Conventions of 12
August 1949, namely, any of the
following acts committed against
persons taking no active part in the
hostilities, including members of
armed forces who have laid down
their arms and those placed hors de
combat by sickness, wounds,
detention or any other cause:
xxxx
(d) Paragraph 2 (c) applies to armed
conflicts not of an international
character and thus does not apply to
situations of internal disturbances and
tensions, such as riots, isolated and
sporadic acts of violence or other acts
of a similar nature.
(e) Other serious violations of the laws
and customs applicable in armed
conflicts not of an international
character, within the established
framework of international law,
namely, any of the following acts: x x
x.
breach of common Article 3 (as
defined in subsection [d][85])
when committed in the context
of and in association with an
armed conflict not of an
international character; or
(4) Of a person who, in relation to
an armed conflict and contrary
to the provisions of the Protocol
on Prohibitions or Restrictions
on the Use of Mines, Booby-
Traps and Other Devices as
amended at Geneva on 3 May
1996 (Protocol II as amended on
3 May 1996), when the United
States is a party to such
Protocol, willfully kills or causes
serious injury to civilians.[86]

Evidently, the gaps pointed out as to the definition of the crimes are not present. In
fact, the report itself stated as much, to wit:

Few believed there were wide differences between the crimes

under the jurisdiction of the Court and crimes within the Uniform Code
of Military Justice that would expose US personnel to the Court.
Since US military lawyers were instrumental in drafting the elements of
crimes outlined in the Rome Statute, they ensured that most of the
crimes were consistent with those outlined in the UCMJ and gave
strength to complementarity for the US. Small areas of potential gaps
between the UCMJ and the Rome Statute, military experts argued, could
be addressed through existing military laws.[87]x x x
 The report went on further to say that [a]ccording to those involved, the
elements of crimes laid out in the Rome Statute have been part of US military
doctrine for decades.[88] Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably

follows the doctrine of incorporation. As early as 1900, the esteemed Justice Gray
in The Paquete Habana[89] case already held international law as part of the law of
the US, to wit:

International law is part of our law, and must be ascertained

and administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be
had to the customs and usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators who by years of labor,
research, and experience have made themselves peculiarly well
acquainted with the subjects of which they treat. Such works are resorted
to by judicial tribunals, not for the speculations of their authors
concerning what the law ought to be, but for the trustworthy evidence of
what the law really is.[90] (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack
of domestic legislation. The cited ruling in U.S. v. Coolidge,[91] which in turn is based on
the holding in U.S. v. Hudson,[92] only applies to common law and not to the law of
nations or international law.[93] Indeed, the Court in U.S. v. Hudson only considered the
question, whether the Circuit Courts of the United States can exercise a common
law jurisdiction in criminal cases.[94] Stated otherwise, there is no common law crime
in the US but this is considerably different from international law.

The US doubtless recognizes international law as part of the law of the land,
necessarily including international crimes, even without any local statute. [95] In fact,
years later, US courts would apply international law as a source of criminal liability
despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte
Quirin[96] the US Supreme Court noted that [f]rom the very beginning of its history this
Court has recognized and applied the law of war as including that part of the law of
nations which prescribes, for the conduct of war, the status, rights and duties of
enemy nations as well as of enemy individuals.[97] It went on further to explain that
Congress had not undertaken the task of codifying the specific offenses covered in
the law of war, thus:

It is no objection that Congress in providing for the trial of such

offenses has not itself undertaken to codify that branch of
international law or to mark its precise boundaries, or to
enumerate or define by statute all the acts which that law
condemns. An Act of Congress punishing the crime of piracy as
defined by the law of nations is an appropriate exercise of its
constitutional authority, Art. I, s 8, cl. 10, to define and punish the
offense since it has adopted by reference the sufficiently precise
definition of international law. x x x Similarly by the reference in the
15th Article of War to offenders or offenses that x x x by the law of war
may be triable by such military commissions. Congress has incorporated
by reference, as within the jurisdiction of military commissions, all
offenses which are defined as such by the law of war x x x, and which
may constitutionally be included within that jurisdiction.[98] x x x
(Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It
has been held that genocide, war crimes and crimes against humanity have attained
the status of customary international law. Some even go so far as to state that these
crimes have attained the status of jus cogens.[99]

Customary international law or international custom is a source of international

law as stated in the Statute of the ICJ.[100] It is defined as the general and consistent
practice of states recognized and followed by them from a sense of legal
obligation.[101] In order to establish the customary status of a particular norm, two
elements must concur: State practice, the objective element; and opinio juris sive
necessitates, the subjective element.[102]

State practice refers to the continuous repetition of the same or similar kind of
acts or norms by States.[103] It is demonstrated upon the existence of the following
elements: (1) generality; (2) uniformity and consistency; and (3)
duration.[104] While, opinio juris, the psychological element, requires that the state
practice or norm be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it.[105]

The term jus cogens means the compelling law.[106] Corollary, a jus cogens norm
holds the highest hierarchical position among all other customary norms and
principles.[107] As a result, jus cogens norms are deemed peremptory and non-
derogable.[108] When applied to international crimes, jus cogens crimes have been
deemed so fundamental to the existence of a just international legal order that states
cannot derogate from them, even by agreement.[109]

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any
state may exercise jurisdiction over an individual who commits certain heinous and
widely condemned offenses, even when no other recognized basis for jurisdiction
exists.[110] The rationale behind this principle is that the crime committed is so
egregious that it is considered to be committed against all members of the
international community[111] and thus granting every State jurisdiction over the
crime.[112]

Therefore, even with the current lack of domestic legislation on the part of the US, it
still has both the doctrine of incorporation and universal jurisdiction to try these
crimes.

Consequently, no matter how hard one insists, the ICC, as an international

tribunal, found in the Rome Statute is not declaratory of customary international law.

The first element of customary international law, i.e., established, widespread,

and consistent practice on the part of States,[113] does not, under the premises, appear
to be obtaining as reflected in this simple reality: As of October 12, 2010, only
114[114] States have ratified the Rome Statute, subsequent to its coming into force eight
(8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of
194[115] countries in the world, or roughly 58.76%, have ratified the Rome Statute casts
doubt on whether or not the perceived principles contained in the Statute have
attained the status of customary law and should be deemed as obligatory international
law. The numbers even tend to argue against the urgency of establishing international
criminal courts envisioned in the Rome Statute. Lest it be overlooked, the Philippines,
judging by the action or inaction of its top officials, does not even feel bound by the
Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the
Philippine representative signed the Statute, but the treaty has not been transmitted to
the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application
of the concurring elements, thus:

Custom or customary international law means a general and

consistent practice of states followed by them from a sense of legal
obligation [opinio juris] x x x. This statement contains the two basic
elements of custom: the material factor, that is how the states behave,
 and the psychological factor or subjective factor, that is, why they
behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual
behavior of states. This includes several elements: duration,
consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More

important is the consistency and the generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it

becomes necessary to determine why states behave the way they
do. Do states behave the way they do because they consider it obligatory
to behave thus or do they do it only as a matter of courtesy? Opinio juris,
or the belief that a certain form of behavior is obligatory, is what makes
practice an international rule. Without it, practice is not
law.[116] (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent

practice, among the different countries in the world that the prosecution of
internationally recognized crimes of genocide, etc. should be handled by a
particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or

the psychological element must be deemed non-existent, for an inquiry on why states
behave the way they do presupposes, in the first place, that they are actually behaving,
as a matter of settled and consistent practice, in a certain manner. This implicitly
requires belief that the practice in question is rendered obligatory by the existence of a
rule of law requiring it.[117] Like the first element, the second element has likewise not
been shown to be present.
 Further, the Rome Statute itself rejects the concept of universal jurisdiction
over the crimes enumerated therein as evidenced by it requiring State
consent.[118] Even further, the Rome Statute specifically and unequivocally requires
that: This Statute is subject to ratification, acceptance or approval by signatory
States.[119] These clearly negate the argument that such has already attained customary
status.

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

must be afforded great respect. The power to enter into executive agreements has
long been recognized to be lodged with the President. As We held in Neri v. Senate
Committee on Accountability of Public Officers and Investigations, [t]he power to enter into an
executive agreement is in essence an executive power. This authority of the President
to enter into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence.[120] The rationale behind this
principle is the inviolable doctrine of separation of powers among the legislative,
executive and judicial branches of the government. Thus, absent any clear
contravention of the law, courts should exercise utmost caution in declaring any
executive agreement invalid.

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

WHEREFORE, the petition for certiorari, mandamus and prohibition is

hereby DISMISSED for lack of merit. No costs.

SO ORDERED.
Republic of the Philippines
Supreme Court
Manila

EN BANC
CHINA NATIONAL MACHINERY & G.R. No. 185572
EQUIPMENT CORP. (GROUP),
Petitioner,

Present:

versus
CORONA, C.J.,
CARPIO,
VELASCO, JR.,
HON. CESAR D. SANTAMARIA, in his
LEONARDO-DE CASTRO,
official capacity as Presiding Judge of
Branch 145, Regional Trial Court of BRION,
Makati City, HERMINIO HARRY L.
PERALTA,
ROQUE, JR., JOEL R. BUTUYAN,
ROGER R. RAYEL, ROMEL R. BERSAMIN,
BAGARES, CHRISTOPHER
DEL CASTILLO,
FRANCISCO C. BOLASTIG, LEAGUE
OF URBAN POOR FOR ACTION ABAD,
(LUPA), KILUSAN NG MARALITA SA
VILLARAMA, JR.,
MEYCAUAYAN (KMM-LUPA
CHAPTER), DANILO M. CALDERON, PEREZ,
VICENTE C. ALBAN, MERLYN M.
VAAL, LOLITA S. QUINONES, MENDOZA,
RICARDO D. LANOZO, JR., SERENO,
CONCHITA G. GOZO, MA. TERESA D.
ZEPEDA, JOSEFINA A. LANOZO, and REYES, and
SERGIO C. LEGASPI, JR., PERLAS-BERNABE, JJ.
KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY), EDY
CLERIGO, RAMMIL DINGAL,
NELSON B. TERRADO, CARMEN
DEUNIDA, and EDUARDO LEGSON,
Respondents.
 Promulgated:

February 7, 2012
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
SERENO, J.:
This is a Petition for Review on Certiorari with Prayer for the Issuance of a
Temporary Restraining Order (TRO) and/or Preliminary Injunction assailing the
30 September 2008 Decision and 5 December 2008 Resolution of the Court of
Appeals (CA) in CAG.R. SP No. 103351. [1]
On 14 September 2002, petitioner China National Machinery & Equipment Corp.
(Group) (CNMEG), represented by its chairperson, Ren Hongbin, entered into a
Memorandum of Understanding with the North Luzon Railways Corporation
(Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a
feasibility study on a possible railway line from Manila to San Fernando, La Union
(the Northrail Project).[2]
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the
Department of Finance of the Philippines (DOF) entered into a Memorandum of
Understanding (Aug 30 MOU), wherein China agreed to extend Preferential Buyers
Credit to the Philippine government to finance the Northrail Project.[3] The Chinese
government designated EXIM Bank as the lender, while the Philippine government
named the DOF as the borrower.[4] Under the Aug 30 MOU, EXIM Bank agreed to
extend an amount not exceeding USD 400,000,000 in favor of the DOF, payable in
20 years, with a 5-year grace period, and at the rate of 3% per annum.[5]
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui
(Amb. Wang), wrote a letter to DOF Secretary Jose Isidro Camacho (Sec. Camacho)
informing him of CNMEGs designation as the Prime Contractor for the Northrail
Project.[6]
On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for
the construction of Section I, Phase I of the North Luzon Railway System from
Caloocan to Malolos on a turnkey basis (the Contract Agreement).[7] The contract
price for the Northrail Project was pegged at USD 421,050,000.[8]
On 26 February 2004, the Philippine government and EXIM Bank entered into
a counterpart financial agreement Buyer Credit Loan Agreement No. BLA 04055 (the
Loan Agreement).[9] In the Loan Agreement, EXIM Bank agreed to extend
Preferential Buyers Credit in the amount of USD 400,000,000 in favor of the
Philippine government in order to finance the construction of Phase I of the
Northrail Project.[10]
On 13 February 2006, respondents filed a Complaint for Annulment of
Contract and Injunction with Urgent Motion for Summary Hearing to Determine the
Existence of Facts and Circumstances Justifying the Issuance of Writs of Preliminary
Prohibitory and Mandatory Injunction and/or TRO against CNMEG, the Office of
the Executive Secretary, the DOF, the Department of Budget and Management, the
National Economic Development Authority and Northrail.[11] The case was docketed
as Civil Case No. 06-203 before the Regional Trial Court, National Capital Judicial
Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint, respondents
alleged that the Contract Agreement and the Loan Agreement were void for being
contrary to (a) the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184),
otherwise known as the Government Procurement Reform Act; (c) Presidential
Decree No. 1445, otherwise known as the Government Auditing Code; and (d)
Executive Order No. 292, otherwise known as the Administrative Code.[12]
RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing
on the issuance of injunctive reliefs.[13] On 29 March 2006, CNMEG filed an Urgent
Motion for Reconsideration of this Order.[14] Before RTC Br. 145 could rule thereon,
CNMEG filed a Motion to Dismiss dated 12 April 2006, arguing that the trial court
did not have jurisdiction over (a) its person, as it was an agent of the Chinese
government, making it immune from suit, and (b) the subject matter, as the Northrail
Project was a product of an executive agreement.[15]
On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs
Motion to Dismiss and setting the case for summary hearing to determine whether
the injunctive reliefs prayed for should be issued.[16] CNMEG then filed a Motion for
Reconsideration,[17] which was denied by the trial court in an Order dated 10 March
2008.[18]Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for
the Issuance of TRO and/or Writ of Preliminary Injunction dated 4 April 2008.[19]
In the assailed Decision dated 30 September 2008, the appellate court
dismissed the Petition for Certiorari.[20]Subsequently, CNMEG filed a Motion for
Reconsideration,[21] which was denied by the CA in a Resolution dated 5 December
2008.[22] Thus, CNMEG filed the instant Petition for Review on Certiorari dated 21
January 2009, raising the following issues: [23]
Whether or not petitioner CNMEG is an agent of the
sovereign Peoples Republic of China.

Whether or not the Northrail contracts are products of an

executive agreement between two sovereign states.

Whether or not the certification from the Department of

Foreign Affairs is necessary under the foregoing circumstances.

Whether or not the act being undertaken by petitioner

CNMEG is an act jure imperii.

Whether or not the Court of Appeals failed to avoid a

procedural limbo in the lower court.

Whether or not the Northrail Project is subject to competitive

public bidding.

Whether or not the Court of Appeals ignored the ruling of this

Honorable Court in the Neri case.

CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145
for lack of jurisdiction. It likewise requests this Court for the issuance of a TRO and,
later on, a writ of preliminary injunction to restrain public respondent from proceeding
with the disposition of Civil Case No. 06-203.
The crux of this case boils down to two main issues, namely:
 1. Whether CNMEG is entitled to immunity, precluding it from
being sued before a local court.
2. Whether the Contract Agreement is an executive agreement, such
that it cannot be questioned by or before a local court.

First issue: Whether CNMEG is entitled

to immunity

This Court explained the doctrine of sovereign immunity in Holy See v.

Rosario,[24] to wit:
There are two conflicting concepts of sovereign immunity, each
widely held and firmly established. According to the classical or absolute
theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure
gestionis.(Emphasis supplied; citations omitted.)

xxx xxx xxx

The restrictive theory came about because of the entry of

sovereign states into purely commercial activities remotely connected
with the discharge of governmental functions. This is particularly true
with respect to the Communist states which took control of nationalized
business activities and international trading.

In JUSMAG v. National Labor Relations Commission,[25] this Court affirmed the

Philippines adherence to the restrictive theory as follows:
The doctrine of state immunity from suit has undergone further
metamorphosis. The view evolved that the existence of a contract does
not, per se, mean that sovereign states may, at all times, be sued in local
courts. The complexity of relationships between sovereign states, brought
 about by their increasing commercial activities, mothered a
more restrictive application of the doctrine.

xxx xxx xxx

As it stands now, the application of the doctrine of immunity

from suit has been restricted to sovereign orgovernmental
activities (jure imperii). The mantle of state immunity cannot be
extended to commercial, private and proprietary acts (jure
[26]
gestionis). (Emphasis supplied.)

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the
legal nature of the act involved whether the entity claiming immunity performs
governmental, as opposed to proprietary, functions. As held in United States of America v.
Ruiz [27]
The restrictive application of State immunity is proper only when
the proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to be
sued only when it enters into business contracts. It does not apply where
the contract relates to the exercise of its sovereign functions.[28]

A. CNMEG is engaged in a proprietary

activity.

A threshold question that must be answered is whether CNMEG performs

governmental or proprietary functions. A thorough examination of the basic facts of
the case would show that CNMEG is engaged in a proprietary activity.
The parties executed the Contract Agreement for the purpose of constructing
the Luzon Railways, viz:[29]
WHEREAS the Employer (Northrail) desired to construct the
railways form Caloocan to Malolos, section I, Phase I of Philippine
 North Luzon Railways Project (hereinafter referred to as THE
PROJECT);

AND WHEREAS the Contractor has offered to provide the

Project on Turnkey basis, including design, manufacturing, supply,
construction, commissioning, and training of the Employers personnel;

AND WHEREAS the Loan Agreement of the Preferential Buyers

Credit between Export-Import Bank of China and Department of
Finance of Republic of the Philippines;

NOW, THEREFORE, the parties agree to sign this Contract for

the Implementation of the Project.

The above-cited portion of the Contract Agreement, however, does not on its
own reveal whether the construction of the Luzon railways was meant to be a
proprietary endeavor. In order to fully understand the intention behind and the
purpose of the entire undertaking, the Contract Agreement must not be read in
isolation. Instead, it must be construed in conjunction with three other documents
executed in relation to the Northrail Project, namely: (a) the Memorandum of
Understanding dated 14 September 2002 between Northrail and CNMEG;[30] (b) the
letter of Amb. Wang dated 1 October 2003 addressed to Sec. Camacho; [31] and (c) the
Loan Agreement.[32]

1. Memorandum of Understanding dated 14

September 2002

The Memorandum of Understanding dated 14 September 2002 shows that

CNMEG sought the construction of the Luzon Railways as a proprietary venture.
The relevant parts thereof read:
WHEREAS, CNMEG has the financial capability, professional
competence and technical expertise to assess the state of the [Main
Line North (MLN)] and recommend implementation plans as well as
undertake its rehabilitation and/or modernization;

WHEREAS, CNMEG has expressed interest in the

rehabilitation and/or modernization of the MLN from Metro
Manila to San Fernando, La Union passing through the provinces of
Bulacan, Pampanga, Tarlac, Pangasinan and La Union (the Project);

WHEREAS, the NORTHRAIL CORP. welcomes CNMEGs

proposal to undertake a Feasibility Study (the Study) at no cost to
NORTHRAIL CORP.;

WHEREAS, the NORTHRAIL CORP. also welcomes

CNMEGs interest in undertaking the Project with Suppliers
Credit and intends to employ CNMEG as the Contractor for the
Project subject to compliance with Philippine and Chinese laws,
rules and regulations for the selection of a contractor;

WHEREAS, the NORTHRAIL CORP. considers CNMEGs

proposal advantageous to the Government of the Republic of
the Philippines and has therefore agreed to assist CNMEG in the
conduct of the aforesaid Study;

xxx xxx xxx

II. APPROVAL PROCESS

2.1 As soon as possible after completion and presentation of

the Study in accordance with Paragraphs 1.3 and 1.4 above and
in compliance with necessary governmental laws, rules,
regulations and procedures required from both parties, the
parties shall commence the preparation and negotiation of the
terms and conditions of the Contract (the Contract) to be
entered into between them on the implementation of the
Project. The parties shall use their best endeavors to
 formulate and finalize a Contract with a view to signing
the Contract within one hundred twenty (120) days from
CNMEGs presentation of the Study.[33] (Emphasis supplied)

Clearly, it was CNMEG that initiated the undertaking, and not the Chinese
government. The Feasibility Study was conducted not because of any diplomatic
gratuity from or exercise of sovereign functions by the Chinese government, but was
plainly a business strategy employed by CNMEG with a view to securing this
commercial enterprise.

2. Letter dated 1 October 2003

That CNMEG, and not the Chinese government, initiated the Northrail Project
was confirmed by Amb. Wang in his letter dated 1 October 2003, thus:
1. CNMEG has the proven competence and
capability to undertake the Project as evidenced by the ranking of 42
given by the ENR among 225 global construction companies.

2. CNMEG already signed an MOU with the North

Luzon Railways Corporation last September 14, 2000 during the visit
of Chairman Li Peng. Such being the case, they have already
established an initial working relationship with your North Luzon
Railways Corporation. This would categorize CNMEG as the
state corporation within the Peoples Republic of China which
initiated our Governments involvement in the Project.

3. Among the various state corporations of the

Peoples Republic of China, only CNMEG has the advantage of being
fully familiar with the current requirements of the Northrail Project
having already accomplished a Feasibility Study which was used as
inputs by the North Luzon Railways Corporation in the approvals
(sic) process required by the Republic of the Philippines.[34] (Emphasis
supplied.)
 Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary
or regular course of its business as a global construction company. The
implementation of the Northrail Project was intended to generate profit for CNMEG,
with the Contract Agreement placing a contract price of USD 421,050,000 for the
venture.[35] The use of the term state corporation to refer to CNMEG was only
descriptive of its nature as a government-owned and/or -controlled corporation, and
its assignment as the Primary Contractor did not imply that it was acting on behalf of
China in the performance of the latters sovereign functions. To imply otherwise
would result in an absurd situation, in which all Chinese corporations owned by the
state would be automatically considered as performing governmental activities, even if
they are clearly engaged in commercial or proprietary pursuits.

3. The Loan Agreement

CNMEG claims immunity on the ground that the Aug 30 MOU on the
financing of the Northrail Project was signed by the Philippine and Chinese
governments, and its assignment as the Primary Contractor meant that it was bound to
perform a governmental function on behalf of China. However, the Loan Agreement,
which originated from the same Aug 30 MOU, belies this reasoning, viz:
Article 11. xxx (j) Commercial Activity The execution and delivery
of this Agreement by the Borrower constitute, and the Borrowers
performance of and compliance with its obligations under this Agreement
will constitute, private and commercial acts done and performed for
commercial purposes under the laws of the Republic of the
Philippines and neither the Borrower nor any of its assets is entitled
to any immunity or privilege (sovereign or otherwise) from suit,
execution or any other legal process with respect to its obligations
under this Agreement, as the case may be, in any
jurisdiction. Notwithstanding the foregoing, the Borrower does not
waive any immunity with respect of its assets which are (i) used by a
diplomatic or consular mission of the Borrower and (ii) assets of a military
character and under control of a military authority or defense agency and
(iii) located in the Philippines and dedicated to public or governmental use
(as distinguished from patrimonial assets or assets dedicated to
commercial use). (Emphasis supplied.)
 (k) Proceedings to Enforce Agreement In any proceeding in the
Republic of the Philippines to enforce this Agreement, the choice of the
laws of the Peoples Republic of China as the governing law hereof will be
recognized and such law will be applied. The waiver of immunity by the
Borrower, the irrevocable submissions of the Borrower to the non-
exclusive jurisdiction of the courts of the Peoples Republic of China and
the appointment of the Borrowers Chinese Process Agent is legal, valid,
binding and enforceable and any judgment obtained in the Peoples
Republic of China will be if introduced, evidence for enforcement in any
proceedings against the Borrower and its assets in the Republic of the
Philippines provided that (a) the court rendering judgment had
jurisdiction over the subject matter of the action in accordance with its
jurisdictional rules, (b) the Republic had notice of the proceedings, (c) the
judgment of the court was not obtained through collusion or fraud, and
(d) such judgment was not based on a clear mistake of fact or law.[36]

Further, the Loan Agreement likewise contains this express waiver of immunity:
15.5 Waiver of Immunity The Borrower irrevocably and
unconditionally waives, any immunity to which it or its property may at
any time be or become entitled, whether characterized as sovereign
immunity or otherwise, from any suit, judgment, service of process upon
it or any agent, execution on judgment, set-off, attachment prior to
judgment, attachment in aid of execution to which it or its assets may be
entitled in any legal action or proceedings with respect to this Agreement
or any of the transactions contemplated hereby or hereunder.
Notwithstanding the foregoing, the Borrower does not waive any
immunity in respect of its assets which are (i) used by a diplomatic or
consular mission of the Borrower, (ii) assets of a military character and
under control of a military authority or defense agency and (iii) located in
the Philippines and dedicated to a public or governmental use (as
distinguished from patrimonial assets or assets dedicated to commercial
use).[37]

Thus, despite petitioners claim that the EXIM Bank extended financial assistance
to Northrail because the bank was mandated by the Chinese government, and not
because of any motivation to do business in the Philippines,[38] it is clear from the
foregoing provisions that the Northrail Project was a purely commercial transaction.
 Admittedly, the Loan Agreement was entered into between EXIM Bank and the
Philippine government, while the Contract Agreement was between Northrail and
CNMEG. Although the Contract Agreement is silent on the classification of the legal
nature of the transaction, the foregoing provisions of the Loan Agreement, which is an
inextricable part of the entire undertaking, nonetheless reveal the intention of the
parties to the Northrail Project to classify the whole venture as commercial or
proprietary in character.
Thus, piecing together the content and tenor of the Contract Agreement, the
Memorandum of Understanding dated 14 September 2002, Amb. Wangs letter dated
1 October 2003, and the Loan Agreement would reveal the desire of CNMEG to
construct the Luzon Railways in pursuit of a purely commercial activity performed in
the ordinary course of its business.

B. CNMEG failed to adduce evidence

that it is immune from suit under Chinese law.

Even assuming arguendo that CNMEG performs governmental functions, such

claim does not automatically vest it with immunity. This view finds support in Malong v.
Philippine National Railways, in which this Court held that (i)mmunity from suit is
determined by the character of the objects for which the entity was organized.[39]
In this regard, this Courts ruling in Deutsche Gesellschaft Fr Technische Zusammenarbeit
(GTZ) v. CA[40] must be examined. In Deutsche Gesellschaft, Germany and
the Philippines entered into a Technical Cooperation Agreement, pursuant to which
both signed an arrangement promoting the Social Health InsuranceNetworking and
Empowerment (SHINE) project. The two governments named their respective
implementing organizations: the Department of Health (DOH) and the Philippine
Health Insurance Corporation (PHIC) for the Philippines, and GTZ for the
implementation of Germanys contributions. In ruling that GTZ was not immune from
suit, this Court held:
The arguments raised by GTZ and the [Office of the Solicitor
General (OSG)] are rooted in several indisputable facts. The SHINE
project was implemented pursuant to the bilateral agreements
between the Philippine and German governments. GTZ was
tasked, under the 1991 agreement, with the implementation of the
contributions of the German government. The activities performed
by GTZ pertaining to the SHINE project are governmental in
nature, related as they are to the promotion of health insurance in
the Philippines. The fact that GTZ entered into employment contracts
with the private respondents did not disqualify it from invoking
immunity from suit, as held in cases such as Holy See v. Rosario,
Jr., which set forth what remains valid doctrine:

Certainly, the mere entering into a contract by a

foreign state with a private party cannot be the ultimate
test. Such an act can only be the start of the inquiry. The
logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the foreign
state is not engaged regularly in a business or trade, the
particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an
incident thereof, then it is an act jure imperii, especially when
it is not undertaken for gain or profit.

Beyond dispute is the tenability of the comment points (sic) raised

by GTZ and the OSG that GTZ was not performing proprietary
functions notwithstanding its entry into the particular employment
contracts. Yet there is an equally fundamental premise which GTZ and
the OSG fail to address, namely: Is GTZ, by conception, able to enjoy
the FederalRepublics immunity from suit?

The principle of state immunity from suit, whether a local state or

a foreign state, is reflected in Section 9, Article XVI of the Constitution,
which states that the State may not be sued without its consent. Who or
what consists of the State? For one, the doctrine is available to foreign
States insofar as they are sought to be sued in the courts of the local
State, necessary as it is to avoid unduly vexing the peace of nations.

If the instant suit had been brought directly against the Federal
Republic of Germany, there would be no doubt that it is a suit brought
against a State, and the only necessary inquiry is whether said State had
consented to be sued. However, the present suit was brought against
GTZ. It is necessary for us to understand what precisely are the
parameters of the legal personality of GTZ.
Counsel for GTZ characterizes GTZ as the implementing
agency of the Government of the Federal Republic of Germany, a
depiction similarly adopted by the OSG. Assuming that the
characterization is correct, it does not automatically invest GTZ with
the ability to invoke State immunity from suit. The distinction lies in
whether the agency is incorporated or unincorporated.

xxx xxx xxx

State immunity from suit may be waived by general or special law.

The special law can take the form of the original charter of the
incorporated government agency. Jurisprudence is replete with examples
of incorporated government agencies which were ruled not entitled to
invoke immunity from suit, owing to provisions in their charters
manifesting their consent to be sued.

xxx xxx xxx

It is useful to note that on the part of the Philippine government, it

had designated two entities, the Department of Health and the Philippine
Health Insurance Corporation (PHIC), as the implementing agencies in
behalf of the Philippines. The PHIC was established under Republic Act
No. 7875, Section 16 (g) of which grants the corporation the power to sue
and be sued in court. Applying the previously cited jurisprudence, PHIC
would not enjoy immunity from suit even in the performance of its
functions connected with SHINE, however, (sic) governmental in nature as
(sic) they may be.

Is GTZ an incorporated agency of the German government?

There is some mystery surrounding that question. Neither GTZ
nor the OSG go beyond the claim that petitioner is the
implementing agency of the Government of the Federal Republic
of Germany. On the other hand, private respondents asserted before
the Labor Arbiter that GTZ was a private corporation engaged in the
implementation of development projects. The Labor Arbiter accepted
that claim in his Order denying the Motion to Dismiss, though he was
silent on that point in his Decision. Nevertheless, private respondents
argue in their Comment that the finding that GTZ was a private
corporation was never controverted, and is therefore deemed
admitted. In its Reply, GTZ controverts that finding, saying that it is a
matter of public knowledge that the status of petitioner GTZ is that of
the implementing agency, and not that of a private corporation.

In truth, private respondents were unable to adduce any evidence

to substantiate their claim that GTZ was a private corporation, and the
Labor Arbiter acted rashly in accepting such claim without explanation.
But neither has GTZ supplied any evidence defining its legal
nature beyond that of the bare descriptive implementing agency.
There is no doubt that the 1991 Agreement designated GTZ as the
implementing agency in behalf of the German government. Yet the
catch is that such term has no precise definition that is responsive
to our concerns. Inherently, an agent acts in behalf of a principal,
and the GTZ can be said to act in behalf of the German state. But
that is as far as implementing agency could take us. The term by
itself does not supply whether GTZ is incorporated or
unincorporated, whether it is owned by the German state or by
private interests, whether it has juridical personality independent of
the German government or none at all.

xxx xxx xxx

Again, we are uncertain of the corresponding legal

implications under German law surrounding a private company
owned by the Federal Republic of Germany. Yet taking the
description on face value, the apparent equivalent under Philippine
law is that of a corporation organized under the Corporation Code
but owned by the Philippine government, or a government-owned
or controlled corporation without original charter. And it bears
notice that Section 36 of the Corporate Code states that [e]very
corporation incorporated under this Code has the power and
capacity x x x to sue and be sued in its corporate name.

It is entirely possible that under German law, an entity such as

GTZ or particularly GTZ itself has not been vested or has been
specifically deprived the power and capacity to sue and/or be sued. Yet
in the proceedings below and before this Court, GTZ has failed to
establish that under German law, it has not consented to be sued
despite it being owned by the Federal Republic of Germany. We
adhere to the rule that in the absence of evidence to the contrary,
foreign laws on a particular subject are presumed to be the same as
those of the Philippines, and following the most intelligent
 assumption we can gather, GTZ is akin to a governmental owned
or controlled corporation without original charter which, by virtue
of the Corporation Code, has expressly consented to be sued. At the
very least, like the Labor Arbiter and the Court of Appeals, this Court has
no basis in fact to conclude or presume that GTZ enjoys immunity from
suit.[41](Emphasis supplied.)

Applying the foregoing ruling to the case at bar, it is readily apparent that
CNMEG cannot claim immunity from suit, even if it contends that it performs
governmental functions. Its designation as the Primary Contractor does not
automatically grant it immunity, just as the term implementing agency has no precise
definition for purposes of ascertaining whether GTZ was immune from suit. Although
CNMEG claims to be a government-owned corporation, it failed to adduce evidence
that it has not consented to be sued under Chinese law. Thus, following this Courts
ruling in Deutsche Gesellschaft, in the absence of evidence to the contrary, CNMEG is to
be presumed to be a government-owned and -controlled corporation without an
original charter. As a result, it has the capacity to sue and be sued under Section 36 of
the Corporation Code.

C. CNMEG failed to present a

certification from the Department of Foreign
Affairs.

In Holy See,[42] this Court reiterated the oft-cited doctrine that the determination by
the Executive that an entity is entitled to sovereign or diplomatic immunity is a political
question conclusive upon the courts, to wit:
In Public International Law, when a state or international agency
wishes to plead sovereign or diplomatic immunity in a foreign court,
it requests the Foreign Office of the state where it is sued to convey
to the court that said defendant is entitled to immunity.

xxx xxx xxx

In the Philippines, the practice is for the foreign government

or the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic immunity. But
 how the Philippine Foreign Office conveys its endorsement to the
courts varies. In International Catholic Migration Commission v. Calleja, 190
SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter
directly to the Secretary of Labor and Employment, informing the latter
that the respondent-employer could not be sued because it enjoyed
diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA
242 (1972), the Secretary of Foreign Affairs sent the trial court a
telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S.
Embassy asked the Secretary of Foreign Affairs to request the Solicitor
General to make, in behalf of the Commander of the United States
Naval Base at Olongapo City, Zambales, a suggestion to respondent
Judge. The Solicitor General embodied the suggestion in a Manifestation
and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through

the Office of Legal Affairs moved with this Court to be allowed to
intervene on the side of petitioner. The Court allowed the said
Department to file its memorandum in support of petitioners claim of
sovereign immunity.

In some cases, the defense of sovereign immunity was submitted

directly to the local courts by the respondents through their private
counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of
America v. Guinto, 182 SCRA 644 [1990] and companion cases). In
cases where the foreign states bypass the Foreign Office, the courts can
inquire into the facts and make their own determination as to the nature
of the acts and transactions involved.[43] (Emphasis supplied.)

The question now is whether any agency of the Executive Branch can make a
determination of immunity from suit, which may be considered as conclusive upon the
courts. This Court, in Department of Foreign Affairs (DFA) v. National Labor Relations
Commission (NLRC),[44] emphasized the DFAs competence and authority to provide such
necessary determination, to wit:
The DFAs function includes, among its other mandates, the
determination of persons and institutions covered by diplomatic
immunities, a determination which, when challenge, (sic) entitles
it to seek relief from the court so as not to seriously impair the
conduct of the country's foreign relations. The DFA must be allowed
 to plead its case whenever necessary or advisable to enable it to help
keep the credibility of the Philippine government before the
international community. When international agreements are
concluded, the parties thereto are deemed to have likewise
accepted the responsibility of seeing to it that their agreements are
duly regarded. In our country, this task falls principally of (sic) the
DFA as being the highest executive department with the
competence and authority to so act in this aspect of the
international arena.[45] (Emphasis supplied.)

Further, the fact that this authority is exclusive to the DFA was also emphasized
in this Courts ruling in Deutsche Gesellschaft:
It is to be recalled that the Labor Arbiter, in both of his rulings,
noted that it was imperative for petitioners to secure from the
Department of Foreign Affairs a certification of respondents diplomatic
status and entitlement to diplomatic privileges including immunity from
suits. The requirement might not necessarily be imperative.
However, had GTZ obtained such certification from the DFA, it
would have provided factual basis for its claim of immunity that
would, at the very least, establish a disputable evidentiary
presumption that the foreign party is indeed immune which the
opposing party will have to overcome with its own factual
evidence. We do not see why GTZ could not have secured such
certification or endorsement from the DFA for purposes of this
case. Certainly, it would have been highly prudential for GTZ to obtain
the same after the Labor Arbiter had denied the motion to dismiss. Still,
even at this juncture, we do not see any evidence that the DFA, the
office of the executive branch in charge of our diplomatic relations,
has indeed endorsed GTZs claim of immunity. It may be possible
that GTZ tried, but failed to secure such certification, due to the same
concerns that we have discussed herein.

Would the fact that the Solicitor General has endorsed

GTZs claim of States immunity from suit before this Court
sufficiently substitute for the DFA certification? Note that the rule
in public international law quoted in Holy See referred to
endorsement by the Foreign Office of the State where the suit is
filed, such foreign office in the Philippines being the Department
of Foreign Affairs. Nowhere in the Comment of the OSG is it
 manifested that the DFA has endorsed GTZs claim, or that the
OSG had solicited the DFAs views on the issue. The arguments
raised by the OSG are virtually the same as the arguments raised by
GTZ without any indication of any special and distinct perspective
maintained by the Philippine government on the issue. The Comment
filed by the OSG does not inspire the same degree of confidence
as a certification from the DFA would have elicited.[46] (Emphasis
supplied.)

In the case at bar, CNMEG offers the Certification executed by the Economic
and Commercial Office of the Embassy of the Peoples Republic of China, stating that
the Northrail Project is in pursuit of a sovereign activity.[47]Surely, this is not the kind of
certification that can establish CNMEGs entitlement to immunity from suit, as Holy
Seeunequivocally refers to the determination of the Foreign Office of the state where it
is sued.
Further, CNMEG also claims that its immunity from suit has the executive
endorsement of both the OSG and the Office of the Government Corporate Counsel
(OGCC), which must be respected by the courts. However, as expressly enunciated
in Deutsche Gesellschaft, this determination by the OSG, or by the OGCC for that matter,
does not inspire the same degree of confidence as a DFA certification. Even with a
DFA certification, however, it must be remembered that this Court is not precluded
from making an inquiry into the intrinsic correctness of such certification.

D. An agreement to submit any dispute

to arbitration may be construed as an implicit waiver
of immunity from suit.

In the United States, the Foreign Sovereign Immunities Act of 1976 provides for
a waiver by implication of state immunity. In the said law, the agreement to submit
disputes to arbitration in a foreign country is construed as an implicit waiver of
immunity from suit. Although there is no similar law in the Philippines, there is reason
to apply the legal reasoning behind the waiver in this case.
The Conditions of Contract,[48] which is an integral part of the Contract
Agreement,[49] states:
33. SETTLEMENT OF DISPUTES AND ARBITRATION
 33.1. Amicable Settlement

Both parties shall attempt to amicably settle all disputes or

controversies arising from this Contract before the commencement of
arbitration.

33.2. Arbitration

All disputes or controversies arising from this Contract which

cannot be settled between the Employer and the Contractor shall be
submitted to arbitration in accordance with the UNCITRAL Arbitration
Rules at present in force and as may be amended by the rest of this
Clause. The appointing authority shall be Hong
Kong International Arbitration Center. The place of arbitration shall be in
Hong Kong at Hong Kong International Arbitration Center (HKIAC).

Under the above provisions, if any dispute arises between Northrail and
CNMEG, both parties are bound to submit the matter to the HKIAC for arbitration.
In case the HKIAC makes an arbitral award in favor of Northrail, its enforcement in
the Philippines would be subject to the Special Rules on Alternative Dispute Resolution
(Special Rules). Rule 13 thereof provides for the Recognition and Enforcement of a
Foreign Arbitral Award. Under Rules 13.2 and 13.3 of the Special Rules, the party to
arbitration wishing to have an arbitral award recognized and enforced in the Philippines
must petition the proper regional trial court (a) where the assets to be attached or levied
upon is located; (b) where the acts to be enjoined are being performed; (c) in the
principal place of business in the Philippines of any of the parties; (d) if any of the
parties is an individual, where any of those individuals resides; or (e) in the National
Capital Judicial Region.
From all the foregoing, it is clear that CNMEG has agreed that it will not be
afforded immunity from suit. Thus, the courts have the competence and jurisdiction to
ascertain the validity of the Contract Agreement.
Second issue: Whether the Contract
Agreement is an executive agreement

Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna

Convention) defines a treaty as follows:
[A]n international agreement concluded between States in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation.

In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to
a treaty, except that the former (a) does not require legislative concurrence; (b) is usually
less formal; and (c) deals with a narrower range of subject matters.[50]
Despite these differences, to be considered an executive agreement, the
following three requisites provided under the Vienna Convention must nevertheless
concur: (a) the agreement must be between states; (b) it must be written; and (c) it must
governed by international law. The first and the third requisites do not obtain in the
case at bar.

A. CNMEG is neither a government nor a

government agency.

The Contract Agreement was not concluded between the Philippines and China,
but between Northrail and CNMEG.[51] By the terms of the Contract Agreement,
Northrail is a government-owned or -controlled corporation, while CNMEG is a
corporation duly organized and created under the laws of the Peoples Republic of
China.[52] Thus, both Northrail and CNMEG entered into the Contract Agreement as
entities with personalities distinct and separate from the Philippine and Chinese
governments, respectively.
Neither can it be said that CNMEG acted as agent of the Chinese government.
As previously discussed, the fact that Amb. Wang, in his letter dated 1 October
2003,[53] described CNMEG as a state corporation and declared its designation as the
Primary Contractor in the Northrail Project did not mean it was to perform sovereign
functions on behalf of China. That label was only descriptive of its nature as a state-
owned corporation, and did not preclude it from engaging in purely commercial or
proprietary ventures.

B. The Contract Agreement is to be

governed by Philippine law.

Article 2 of the Conditions of Contract,[54] which under Article 1.1 of the

Contract Agreement is an integral part of the latter, states:
APPLICABLE LAW AND GOVERNING LANGUAGE

The contract shall in all respects be read and construed in

accordance with the laws of the Philippines.

The contract shall be written in English language. All

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

Since the Contract Agreement explicitly provides that Philippine law shall be
applicable, the parties have effectively conceded that their rights and obligations
thereunder are not governed by international law.
It is therefore clear from the foregoing reasons that the Contract Agreement
does not partake of the nature of an executive agreement. It is merely an ordinary
commercial contract that can be questioned before the local courts.
WHEREFORE, the instant Petition is DENIED. Petitioner China National
Machinery & Equipment Corp. (Group) is not entitled to immunity from suit, and the
Contract Agreement is not an executive agreement. CNMEGs prayer for the issuance of
a TRO and/or Writ of Preliminary Injunction is DENIED for being moot and
academic. This case is REMANDED to the Regional Trial Court of Makati, Branch
145, for further proceedings as regards the validity of the contracts subject of Civil
Case No. 06-203.
No pronouncement on costs of suit.
SO ORDERED.
Summary of the Summary of the Judgment of 25 July 1974
 FISHERIES JURISDICTION CASE (UNITED KINGDOM v. ICELAND)
(MERITS)
Judgment of 25 July 1974
In its Judgment on the merits in the case concerning Fisheries Jurisdiction (United
Kingdom v. Iceland), the Court, by ten votes to four:
(1) found that the Icelandic Regulations of 1972 constituting a unilateral extension of the
exclusive fishing rights of Iceland to 50 nautical miles from the baselines are not opposable
to the United Kingdom;
(2) found that Iceland is not entitled unilaterally to exclude United Kingdom fishing vessels
from areas between the 12-mile and 50-mile limits, or unilaterally to impose restrictions on
their activities in such areas;
(3) held that Iceland and the United Kingdom are under mutual obligations to undertake
negotiations in good faith for an equitable solution of their differences;
(4) indicated certain factors which are to be taken into account in these negotiations
(preferential rights of Iceland, established rights of the United Kingdom, interests of other
States, conservation of fishery resources, joint examination of measures required).
The Court was composed as follows: President Lachs, Judges Forster, Gros, Bengzon,
Petrn, Onyeama, Dillard, Ignacio-Pinto, de Castro, Morozov, Jimnz de Archaga,
Sir Humphrey Waldock, Nagendra Singh and Ruda.
Among the ten Members of the Court who voted in favour of the Judgment, the President
and Judge Nagendra Singh appended declarations; Judges Forster, Bengzon, Jimnez de
Archaga, Nagendra Singh (already mentioned) and Ruda appended a joint separate
opinion, and Judges Dillard, de Castro and Sir Humphrey Waldock appended separate
opinions.
Of the four judges who voted against the Judgment, Judge Ignacio-Pinto appended a
declaration and Judges Gros, Petrn and Onyeama appended dissenting opinions.
In these declarations and opinions the judges concerned make clear and explain their
decisions.
Procedure - Failure of Party to Appear (paras. 1-18 of the Judgment)
In its Judgment, the Court recalls that proceedings were instituted by the United Kingdom
against Iceland on 14 April 1972. At the request of the United Kingdom, the Court indicated
interim measures of protection by an Order dated 17 August 1972 and confirmed them by a
further Order dated 12 July 1972. By a Judgment of 2 February 1973 the Court found that it
had jurisdiction to deal with the merits of the dispute.
In its final submissions, the United Kingdom asked the Court to adjudge and declare:
(a) that the claim by Iceland to be entitled to a zone of exclusive fisheries jurisdiction
extending 50 nautical miles from the baselines is without foundation in international law and
is invalid;
(b) that, as against the United Kingdom, Iceland is not entitled unilaterally to assert an
exclusive fisheries jurisdiction beyond the limit of 12 miles agreed to in an Exchange of
Notes in 1961;
(c) that Iceland is not entitled unilaterally to exclude British fishing vessels from the area of
the high seas beyond the 12-mile limit or unilaterally to impose restrictions on their activities
in that area;
(d) that Iceland and the United Kingdom are under a duty to examine together, either
bilaterally or with other interested States, the need on conservation grounds for the
introduction of restrictions on fishing activities in the said area of the high seas and to
negotiate for the establishment of such a rgime in that area as will inter alia ensure for
Iceland a preferential position consistent with its position as a State specially dependent on
its fisheries.
Iceland did not take part in any phase of the proceedings. By a letter of 29 May 1972 Iceland
informed the Court that it regarded the Exchange of Notes of 1961 as terminated; that in its
view there was no basis under the Statute for the Court to exercise jurisdiction; and that, as it
considered its vital interests to be involved, it was not willing to confer jurisdiction on the
Court in any case involving the extent of its fishery limits. In a letter dated 11 January 1974,
Iceland stated that it did not accept any of the statements of fact or any of the allegations or
contentions of law submitted on behalf of the United Kingdom.
The United Kingdom having referred to Article 53 of the Statute, the Court had to
determine whether the claim was founded in fact and law. The facts requiring the Court's
consideration in adjudicating upon the claim were attested by documentary evidence whose
accuracy there appeared to be no reason to doubt. As for the law, although it was to be
regretted that Iceland had failed to appear, the Court was nevertheless deemed to take notice
of international law, which lay within its own judicial knowledge. Having taken account of
the legal position of each Party and acted with particular circumspection in view of the
absence of the respondent State, the Court considered that it had before it the elements
necessary to enable it to deliver judgment.
History of the Dispute Jurisdiction of the Court (paras. 19-48 of the Judgment)
The Court recalled that in 1948 the Althing (the Parliament of Iceland) had passed a law
concerning the Scientific Conservation of the Continental Shelf Fisheries which empowered
the Government to establish conservation zones wherein all fisheries should be subject to
Icelandic rules and control to the extent compatible with agreements with other countries.
Subsequently the 1901 Anglo-Danish Convention which had fixed a limit for Iceland's
exclusive right of fishery round its coasts was denounced by Iceland as from 1951, new
Icelandic Regulations of 1958 proclaimed a 12-mile limit and the Althing declared by a
resolution in 1959 "that recognition should be obtained of Iceland's right to the entire
continental shelf area in conformity with the policy adopted by the Law of 1948". Following
a number of incidents and a series of negotiations, Iceland and the United Kingdom agreed
on an Exchange of Notes which took place on 11 March 1961 and specified inter alia that the
United Kingdom would no longer object to a 12-mile fishery zone, that Iceland would
continue to work for the implementation of the 1959 resolution regarding the extension of
fisheries jurisdiction but would give the United Kingdom six months' notice of such
extension and that "in case of a dispute in relation to such extension, the matter shall, at the
request of either Party, be referred to the International Court of Justice".
In 1971, the Icelandic Government announced that the agreement on fisheries jurisdiction
with the United Kingdom would be terminated and that the limit of exclusive Icelandic
fisheries jurisdiction would be extended to 50 miles. In an aide-mmoire of 24 February
1972 the United Kingdom was formally notified of this intention. In reply the latter
emphasized that the Exchange of Notes was not open to unilateral denunciation and that in
its view the measure contemplated "would have no basis in international law". On 14 July
1972 new Regulations were introduced whereby Iceland's fishery limits would be extended
to 50 miles as from 1 September 1972 and all fishing activities by foreign vessels inside those
limits be prohibited. Their enforcement gave rise, while proceedings before the Court were
continuing and Iceland was refusing to recognize the Court's decisions, to a series of
incidents and negotiations which resulted on 13 November 1973 in an exchange of Notes
constituting an interim agreement between the United Kingdom and Iceland. This
agreement, concluded for two years, provided for temporary arrangements "pending a
settlement of the substantive dispute and without prejudice to the legal position or rights of
either Government in relation thereto".
The Court considered that the existence of the interim agreement ought not to lead it to
refrain from pronouncing judgment: it could not be said that the issues before the Court had
become without object, since the dispute still continued and, though it was beyond the
powers of the Court to declare the law between the Parties as it might be at the date of
expiration of the interim agreement, that could not relieve the Court from its obligation to
render a judgment on the basis of the law as it now existed; furthermore, the Court ought
not to discourage the making of interim arrangements in future disputes with the object of
reducing friction.
Reverting to the 1961 Exchange of Notes, which in the Court's Judgment of 1973 was held
to be a treaty in force, the Court emphasized that it would be too narrow an interpretation of
the compromissory clause (quoted above) to conclude that it limited the Court's jurisdiction
to giving an affirmative or a negative answer to the question of whether the Icelandic
Regulations of 1972 were in conformity with international law. It seemed evident that the
dispute between the Parties included disagreements as to their respective rights in the fishery
resources and the adequacy of measures to conserve them. It was within the power of the
Court to take into consideration all relevant elements
Applicable Rules of International Law (paras. 49-78 of the Judgment)
The first United Nations Conference on the Law of the Sea (Geneva, 1958) had adopted a
Convention on the High Seas, Article 2 of which declared the principle of the freedom of
the high seas, that is to say, freedom of navigation, freedom of fishing, etc., to "be exercised
by all States with reasonable regard to the interests of other States in their exercise of the
freedom of the high seas".
The question of the breadth of the territorial sea and that of the extent of the coastal State's
fishery jurisdiction had been left unsettled at the 1958 Conference and were not settled at a
second Conference held in Geneva in 1960. However, arising out of the general consensus
at that second Conference, two concepts had since crystallized as customary law: that of a
fishery zone, between the territorial sea and the high seas within which the coastal State
could claim exclusive fisheries jurisdiction - it now being generally accepted that that zone
could extend to the 12-mile limit - and the concept, in respect of waters adjacent to the zone
of exclusive fishing rights, of preferential fishing rights in favour of the coastal State in a
situation of special dependence on its fisheries. The Court was aware that in recent years a
number of States had asserted an extension of their exclusive fishery limits. The Court was
likewise aware of present endeavours, pursued under the auspices of the United Nations, to
achieve in a third Conference on the Law of the Sea the further codification and progressive
development of that branch of the law, as it was also of various proposals and preparatory
documents produced in that framework. But, as a court of law, it could not render
judgment sub specie legis ferendae or anticipate the law before the legislator had laid it down. It
must take into account the existing rules of international law and the Exchange of Notes of
1961.
The concept of preferential fishing rights had originated in proposals submitted by Iceland
at the Geneva Conference of 1958, which had confined itself to recommending that:
". . . where, for the purpose of conservation, it becomes necessary to limit the total catch of
a stock or stocks of fish in an area of the high seas adjacent to the territorial sea of a coastal
State, any other States fishing in that area should collaborate with the coastal State to secure
just treatment of such situation, by establishing agreed measures which shall recognize any
preferential requirements of the coastal State resulting from its dependence upon the fishery
concerned while having regard to the interests of the other States".
At the 1960 Conference the same concept had been embodied in an amendment
incorporated by a substantial vote into one of the proposals concerning the fishing zone.
The contemporary practice of States showed that that concept, in addition to its increasing
and widespread acceptance, was being implemented by agreements, either bilateral or
multilateral. In the present case, in which the exclusive fishery zone within the limit of 12
miles was not in dispute, the United Kingdom had expressly recognized the preferential
rights of the other Party in the disputed waters situated beyond that limit. There could be no
doubt of the exceptional dependence of Iceland on its fisheries and the situation appeared to
have been reached when it was imperative to preserve fish stocks in the interests of rational
and economic exploitation.
However, the very notion of preferential fishery rights for the coastal State in a situation of
special dependence, though it implied a certain priority, could not imply the extinction of the
concurrent rights of other States. The fact that Iceland was entitled to claim preferential
rights did not suffice to justify its claim unilaterally to exclude British fishing vessels from all
fishing beyond the limit of 12 miles agreed to in 1961.
The United Kingdom had pointed out that its vessels had been fishing in Icelandic waters
for centuries, that they had done so in a manner comparable with their present activities for
upwards of fifty years and that their exclusion would have very serious adverse
consequences. There too the economic dependence and livelihood of whole communities
were affected, and the United Kingdom shared the same interest in the conservation of fish
stocks as Iceland, which had for its part admitted the existence of the Applicant's historic
and special interests in fishing in the disputed waters. Iceland's 1972 Regulations were
therefore not opposable to the United Kingdom; they disregarded the established rights of
that State and also the Exchange of Notes of 1961, and they constituted an infringement of
the principle (1958 Convention on the High Seas, Art. 2) of reasonable regard for the
interests of other States, including the United Kingdom.
In order to reach an equitable solution of the present dispute it was necessary that the
preferential fishing rights of Iceland should be reconciled with the traditional fishing rights
of the United Kingdom through the appraisal at any given moment of the relative
dependence of either State on the fisheries in question, while taking into account the rights
of other States and the needs of conservation. Thus Iceland was not in law entitled
unilaterally to exclude United Kingdom fishing vessels from areas to seaward of the limit of
12 miles agreed to in 1961 or unilaterally to impose restrictions on their activities. But that
did not mean that the United Kingdom was under no obligation to Iceland with respect to
fishing in the disputed waters in the 12-mile to 50-mile zone. Both Parties had the obligation
to keep under review the fishery resources in those waters and to examine together, in the
light of the information available, the measures required for the conservation and
development, and equitable exploitation, of those resources, taking into account any
international agreement that might at present be in force or might be reached after
negotiation.
The most appropriate method for the solution of the dispute was clearly that of negotiation
with a view to delimiting the rights and interests of the Parties and regulating equitably such
questions as those of catch-limitation, share allocations and related restrictions. The
obligation to negotiate flowed from the very nature of the respective rights of the Parties
and corresponded to the provisions of the United Nations Charter concerning peaceful
settlement of disputes. The Court could not accept the view that the common intention of
the Parties was to be released from negotiating throughout the whole period covered by the
1973 interim agreement. The task before them would be to conduct their negotiations on the
basis that each must in good faith pay reasonable regard to the legal rights of the other, to
the facts of the particular situation and to the interests of other States with established
fishing rights in the area.
For those reasons, the Court gave (Judgment, para. 79) the decision indicated above.
Summary of the Summary of the Judgment of 25 September 1997
 Case concerning Gabckovo-Nagymaros Project (Hungary/Slovakia)
Summary of the Judgment of 25 September 1997
Review of the proceedings and statement of claims (paras. 1-14)
The Court begins by recalling that proceedings had been instituted on 2 July 1993 by a
joint notification, by Hungary and Slovakia, of a Special Agreement, signed at Brussels on 7
April 1993. After setting out the text of the Agreement, the Court recites the successive
stages of the proceedings, referring, among other things, to its visit, on the invitation of the
parties, to the area, from 1 to 4 April 1997. It further sets out the submissions of the
Parties.
History of the dispute (paras. 15-25)
The Court recalls that the present case arose out of the signature, on 16 September 1977,
by the Hungarian People's Republic and the Czechoslovak People's Republic, of a treaty
"concerning the construction and operation of the Gabckovo-Nagymaros System of
Locks" (hereinafter called the "1977 Treaty"). The names of the two contracting States
have varied over the years; they are referred to as Hungary and Czechoslovakia. The 1977
Treaty entered into force on 30 June 1978. It provides for the construction and operation
of a System of Locks by the parties as a "joint investment". According to its Preamble, the
system was designed to attain "the broad utilization of the natural resources of the
Bratislava-Budapest section of the Danube river for the development of water resources,
energy, transport, agriculture and other sectors of the national economy of the Contracting
Parties". The joint investment was thus essentially aimed at the production of
hydroelectricity, the improvement of navigation on the relevant section of the Danube and
the protection of the areas along the banks against flooding. At the same time, by the terms
of the Treaty, the contracting parties undertook to ensure that the quality of water in the
Danube was not impaired as a result of the Project, and that compliance with the
obligations for the protection of nature arising in connection with the construction and
operation of the System of Locks would be observed.
The sector of the Danube river with which this case is concerned is a stretch of
approximately 200 kilometres, between Bratislava in Slovakia and Budapest in Hungary.
Below Bratislava, the river gradient decreases markedly, creating an alluvial plain of gravel
and sand sediment. The boundary between the two States is constituted, in the major part
of that region, by the main channel of the river. Cunovo and, further downstream,
Gabckovo, are situated in this sector of the river on Slovak territory, Cunovo on the
right bank and Gabckovo on the left. Further downstream, after the confluence of the
various branches, the river enters Hungarian territory. Nagymaros lies in a narrow valley at
a bend in the Danube just before it turns south, enclosing the large river island of
Szentendre before reaching Budapest (see sketch-map No. 1 (85 Kb) ).
The 1977 Treaty describes the principal works to be constructed in pursuance of the
Project. It provided for the building of two series of locks, one at Gabckovo (in
Czechoslovak territory) and the other at Nagymaros (in Hungarian territory), to constitute
"a single and indivisible operational system of works" (see sketch-map No. 2, (85 Kb) ).
The Treaty further provided that the technical specifications concerning the system would
be included in the "Joint Contractual Plan" which was to be drawn up in accordance with
the Agreement signed by the two Governments for this purpose on 6 May 1976. It also
provided for the construction, financing and management of the works on a joint basis in
which the Parties participated in equal measure.
The Joint Contractual Plan, set forth, on a large number of points, both the objectives of
the system and the characteristics of the works. It also contained "Preliminary Operating
and Maintenance Rules", Article 23 of which specified that "The final operating rules
[should] be approved within a year of the setting into operation of the system."
The Court observes that the Project was thus to have taken the form of an integrated joint
project with the two contracting parties on an equal footing in respect of the financing,
construction and operation of the works. Its single and indivisible nature was to have been
realized through the Joint Contractual Plan which complemented the Treaty. In particular,
Hungary would have had control of the sluices at Dunakiliti and the works at Nagymaros,
whereas Czechoslovakia would have had control of the works at Gabckovo.
*
The schedule of work had for its part been fixed in an Agreement on mutual assistance
signed by the two parties on 16 September 1977, at the same time as the Treaty itself. The
Agreement made some adjustments to the allocation of the works between the parties as
laid down by the Treaty. Work on the Project started in 1978. On Hungary's initiative, the
two parties first agreed, by two Protocols signed on 10 October 1983 to slow the work
down and to postpone putting into operation the power plants, and then, by a Protocol
signed on 6 February 1989 to accelerate the Project.
As a result of intense criticism which the Project had generated in Hungary, the Hungarian
Government decided on 13 May 1989 to suspend the works at Nagymaros pending the
completion of various studies which the competent authorities were to finish before 31
July 1989. On 21 July 1989, the Hungarian Government extended the suspension of the
works at Nagymaros until 31 October 1989, and, in addition, suspended the works at
Dunakiliti until the same date. Lastly, on 27 October 1989, Hungary decided to abandon
the works at Nagymaros and to maintain the status quo at Dunakiliti.
During this period, negotiations took place between the parties. Czechoslovakia also
started investigating alternative solutions. One of them, an alternative solution
subsequently known as "Variant C", entailed a unilateral diversion of the Danube by
Czechoslovakia on its territory some 10 kilometres upstream of Dunakiliti (see sketch-map
No. 3, (90 Kb) ). In its final stage, Variant C included the construction at Cunovo of an
overflow dam and a levee linking that dam to the south bank of the bypass canal. Provision
was made for ancillary works.
On 23 July 1991, the Slovak Government decided "to begin, in September 1991,
construction to put the Gabckovo Project into operation by the provisional solution".
Work on Variant C began in November 1991. Discussions continued between the two
parties but to no avail, and, on 19 May 1992, the Hungarian Government transmitted to
the Czechoslovak Government a Note Verbale terminating the 1977 Treaty with effect
from 25 May 1992. On 15 October 1992, Czechoslovakia began work to enable the
Danube to be closed and, starting on 23 October, proceeded to the damming of the river.
The Court finally takes note of the fact that on 1 January 1993 Slovakia became an
independent State; that in the Special Agreement thereafter concluded between Hungary
and Slovakia the Parties agreed to establish and implement a temporary water management
rgime for the Danube; and that finally they concluded an Agreement in respect of it on
19 April 1995, which would come to an end 14 days after the Judgment of the Court. The
Court also observes that not only the 1977 Treaty, but also the "related instruments" are
covered in the preamble to the Special Agreement and that the Parties, when concentrating
their reasoning on the 1977 Treaty, appear to have extended their arguments to the
"related instruments".
Suspension and abandonment by Hungary, in 1989, of works on the Project (paras.
27-59)
In terms of Article 2, paragraph 1 (a), of the Special Agreement, the Court is requested to
decide first
"whether the Republic of Hungary was entitled to suspend and subsequently abandon, in
1989, the works on the Nagymaros Project and on the part of the Gabckovo Project for
which the Treaty attributed responsibility to the Republic of Hungary".
The Court observes that it has no need to dwell upon the question of the applicability or
non-applicability in the present case of the Vienna Convention of 1969 on the Law of
Treaties, as argued by the Parties. It needs only to be mindful of the fact that it has several
times had occasion to hold that some of the rules laid down in that Convention might be
considered as a codification of existing customary law. The Court takes the view that in
many respects this applies to the provisions of the Vienna Convention concerning the
termination and the suspension of the operation of treaties, set forth in Articles 60 to 62.
Neither has the Court lost sight of the fact that the Vienna Convention is in any event
applicable to the Protocol of 6 February 1989 whereby Hungary and Czechoslovakia
agreed to accelerate completion of the works relating to the Gabckovo-Nagymaros
Project.
Nor does the Court need to dwell upon the question of the relationship between the law of
treaties and the law of State responsibility, to which the Parties devoted lengthy arguments,
as those two branches of international law obviously have a scope that is distinct. A
determination of whether a convention is or is not in force, and whether it has or has not
been properly suspended or denounced, is to be made pursuant to the law of treaties. On
the other hand, an evaluation of the extent to which the suspension or denunciation of a
convention, seen as incompatible with the law of treaties, involves the responsibility of the
State which proceeded to it, is to be made under the law of State responsibility.
The Court cannot accept Hungary's argument to the effect that, in 1989, in suspending and
subsequently abandoning the works for which it was still responsible at Nagymaros and at
Dunakiliti, it did not suspend the application of the 1977 Treaty itself or then reject that
Treaty. The conduct of Hungary at that time can only be interpreted as an expression of its
unwillingness to comply with at least some of the provisions of the Treaty and the
Protocol of 6 February 1989, as specified in the Joint Contractual Plan. The effect of
Hungary's conduct was to render impossible the accomplishment of the system of works
that the Treaty expressly described as "single and indivisible".
The Court then considers the question of whether there was, in 1989, a state of necessity
which would have permitted Hungary, without incurring international responsibility, to
suspend and abandon works that it was committed to perform in accordance with the 1977
Treaty and related instruments.
The Court observes, first of all, that the state of necessity is a ground recognized by
customary international law for precluding the wrongfulness of an act not in conformity
with an international obligation. It considers moreover that such ground for precluding
wrongfulness can only be accepted on an exceptional basis. The following basic conditions
set forth in Article 33 of the Draft Article on the International Responsibility of States by
the International Law Commission are relevant in the present case: it must have been
occasioned by an "essential interest" of the State which is the author of the act conflicting
with one of its international obligations; that interest must have been threatened by a
"grave and imminent peril"; the act being challenged must have been the "only means" of
safeguarding that interest; that act must not have "seriously impair[ed] an essential interest"
of the State towards which the obligation existed; and the State which is the author of that
act must not have "contributed to the occurrence of the state of necessity". Those
conditions reflect customary international law.
The Court has no difficulty in acknowledging that the concerns expressed by Hungary for
its natural environment in the region affected by the Gabckovo-Nagymaros Project
related to an "essential interest" of that State.
It is of the view, however, that, with respect to both Nagymaros and Gabckovo, the
perils invoked by Hungary, without prejudging their possible gravity, were not sufficiently
established in 1989, nor were they "imminent"; and that Hungary had available to it at that
time means of responding to these perceived perils other than the suspension and
abandonment of works with which it had been entrusted. What is more, negotiations were
under way which might have led to a review of the Project and the extension of some of its
time-limits, without there being need to abandon it.
The Court further notes that Hungary when it decided to conclude the 1977 Treaty, was
presumably aware of the situation as then known; and that the need to ensure the
protection of the environment had not escaped the parties. Neither can it fail to note the
positions taken by Hungary after the entry into force of the 1977 Treaty. Slowly, speeded
up. The Court infers that, in the present case, even if it had been established that there was,
in 1989, a state of necessity linked to the performance of the 1977 Treaty, Hungary would
not have been permitted to rely upon that state of necessity in order to justify its failure to
comply with its treaty obligations, as it had helped, by act or omission to bring it about.
In the light of the conclusions reached above, the Court finds that Hungary was not
entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros
Project and on the part of the Gabckovo Project for which the 1977 Treaty and related
instruments attributed responsibility to it.
Czechoslovakia's proceeding, in November 1991, to "Variant C" and putting into
operation, from October 1992, this Variant (paras. 60-88)
By the terms of Article 2, paragraph 1 (b), of the Special Agreement, the Court is asked in
the second place to decide
"(b)whether the Czech and Slovak Federal Republic was entitled to proceed, in November
1991, to the 'provisional solution' and to put into operation from October 1992 this
system".
Czechoslovakia had maintained that proceeding to Variant C and putting it into operation
did not constitute internationally wrongful acts; Slovakia adopted this argument. During
the proceedings before the Court Slovakia contended that Hungary's decision to suspend
and subsequently abandon the construction of works at Dunakiliti had made it impossible
for Czechoslovakia to carry out the works as initially contemplated by the 1977 Treaty and
that the latter was therefore entitled to proceed with a solution which was as close to the
original Project as possible. Slovakia invoked what it described as a "principle of
approximate application" to justify the construction and operation of Variant c. It
explained that this was the only possibility remaining to it "of fulfilling not only the
purposes of the 1977 Treaty, but the continuing obligation to implement it in good faith".
The Court observes that it is not necessary to determine whether there is a principle of
international law or a general principle of law of "approximate application" because, even if
such a principle existed, it could by definition only be employed within the limits of the
treaty in question. In the view of the Court, Variant C does not meet that cardinal
condition with regard to the 1977 Treaty.
As the Court has already observed, the basic characteristic of the 1977 Treaty is, according
to Article 1, to provide for the construction of the Gabckovo-Nagymaros System of
Locks as a joint investment constituting a single and indivisible operational system of
works. This element is equally reflected in Articles 8 and 10 of the Treaty providing for
joint ownership of the most important works of the Gabckovo-Nagymaros project and
for the operation of this joint property as a co-ordinated single unit. By definition all this
could not be carried out by unilateral action. In spite of having a certain external physical
similarity with the original Project, Variant C thus differed sharply from it in its legal
characteristics. The Court accordingly concludes that Czechoslovakia, in putting Variant C
into operation, was not applying the 1977 Treaty but, on the contrary, violated certain of
its express provisions, and, in so doing, committed an internationally wrongful act.
The Court notes that between November 1991 and October 1992, Czechoslovakia
confined itself to the execution, on its own territory, of the works which were necessary
for the implementation of Variant C, but which could have been abandoned if an
agreement had been reached between the parties and did not therefore predetermine the
final decision to be taken. For as long as the Danube had not been unilaterally dammed,
Variant C had not in fact been applied. Such a situation is not unusual in international law
or, for that matter, in domestic law. A wrongful act or offence is frequently preceded by
preparatory actions which are not to be confused with the act or offence itself. It is as well
to distinguish between the actual commission of a wrongful act (whether instantaneous or
continuous) and the conduct prior to that act which is of a preparatory character and
which "does not qualify as a wrongful act".
Slovakia also maintained that it was acting under a duty to mitigate damages when it carried
out Variant c. It stated that "It is a general principle of international law that a party injured
by the non-performance of another contract party must seek to mitigate the damage he has
sustained." But the Court observes that, while this principle might thus provide a basis for
the calculation of damages, it could not, on the other hand, justify an otherwise wrongful
act. The Court further considers that the diversion of the Danube carried out by
Czechoslovakia was not a lawful countermeasure because it was not proportionate.
In the light of the conclusions reached above, the Court finds that Czechoslovakia was
entitled to proceed, in November 1991, to Variant C in so far as it then confined itself to
undertaking works which did not predetermine the final decision to be taken by it. On the
other hand, Czechoslovakia was not entitled to put that Variant into operation from
October 1992.
Notification by Hungary, on 19 May 1992, of the termination of the 1977 Treaty and
related instruments (paras. 89-115)
By the terms of Article 2, paragraph 1 (c), of the Special Agreement, the Court is asked,
thirdly, to determine
"what are the legal effects of the notification, on 19 May 1992, of the termination of the
Treaty by the Republic of Hungary".
During the proceedings, Hungary presented five arguments in support of the lawfulness,
and thus the effectiveness, of its notification of termination. These were the existence of a
state of necessity; the impossibility of performance of the Treaty; the occurrence of a
fundamental change of circumstances; the material breach of the Treaty by
Czechoslovakia; and, finally, the development of new norms of international
environmental law. Slovakia contested each of these grounds.
State of necessity
The Court observes that, even if a state of necessity is found to exist, it is not a ground for
the termination of a treaty. It may only be invoked to exonerate from its responsibility a
State which has failed to implement a treaty.
 Impossibility of performance
The Court finds that it is not necessary to determine whether the term "object" in Article
61 of the Vienna Convention of 1969 on the Law of Treaties (which speaks of "permanent
disappearance or destruction of an object indispensable for the execution of the treaty" as
a ground for terminating or withdrawing from it) can also be understood to embrace a
legal rgime as in any event, even if that were the case, it would have to conclude that in
this instance that rgime had not definitively ceased to exist. The 1977 Treaty and in
particular its Articles 15, 19 and 20 actually made available to the parties the necessary
means to proceed at any time, by negotiation, to the required readjustments between
economic imperatives and ecological imperatives.
Fundamental change of circumstances
In the Court's view, the prevalent political conditions were not so closely linked to the
object and purpose of the Treaty that they constituted an essential basis of the consent of
the parties and, in changing, radically altered the extent of the obligations still to be
performed. The same holds good for the economic system in force at the time of the
conclusion of the 1977 Treaty. Nor does the Court consider that new developments in the
state of environmental knowledge and of environmental law can be said to have been
completely unforeseen. What is more, the formulation of Articles 15, 19 and 20 is designed
to accommodate change. The changed circumstances advanced by Hungary are thus, in the
Court's view, not of such a nature, either individually or collectively, that their effect would
radically transform the extent of the obligations still to be performed in order to
accomplish the Project.
Material breach of the Treaty
Hungary's main argument for invoking a material breach of the Treaty was the
construction and putting into operation of Variant c. The Court pointed out that it had
already found that Czechoslovakia violated the Treaty only when it diverted the waters of
the Danube into the bypass canal in October 1992. In constructing the works which would
lead to the putting into operation of Variant C, Czechoslovakia did not act unlawfully. In
the Court's view, therefore, the notification of termination by Hungary on 19 May 1992
was premature. No breach of the Treaty by Czechoslovakia had yet taken place and
consequently Hungary was not entitled to invoke any such breach of the Treaty as a
ground for terminating it when it did.
Development of new norms of international environmental law
The Court notes that neither of the Parties contended that new peremptory norms of
environmental law had emerged since the conclusion of the 1977 Treaty; and the Court
will consequently not be required to examine the scope of Article 64 of the Vienna
Convention on the Law of Treaties (which treats of the voidance and termination of a
treaty because of the emergence of a new peremptory norm of general international
law (jus cogens)). On the other hand, the Court wishes to point out that newly developed
norms of environmental law are relevant for the implementation of the Treaty and that the
parties could, by agreement, incorporate them through the application of Articles 15, 19
and 20 of the Treaty. These articles do not contain specific obligations of performance but
require the parties, in carrying out their obligations to ensure that the quality of water in
the Danube is not impaired and that nature is protected, to take new environmental norms
into consideration when agreeing upon the means to be specified in the Joint Contractual
Plan. By inserting these evolving provisions in the Treaty, the parties recognized the
potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open
to adapt to emerging norms of international law. By means of Articles 15 and 19, new
environmental norms can be incorporated in the Joint Contractual Plan. The awareness of
the vulnerability of the environment and the recognition that environmental risks have to
be assessed on a continuous basis have become much stronger in the years since the
Treaty's conclusion. These new concerns have enhanced the relevance of Articles 15, 19
and 20. The Court recognizes that both Parties agree on the need to take environmental
concerns seriously and to take the required precautionary measures, but they fundamentally
disagree on the consequences this has for the joint Project. In such a case, third-party
involvement may be helpful and instrumental in finding a solution, provided each of the
Parties is flexible in its position.
Finally, the Court is of the view that although it has found that both Hungary and
Czechoslovakia failed to comply with their obligations under the 1977 Treaty, this
reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination.
In the light of the conclusions it has reached above, the Court finds that the notification of
termination by Hungary of 19 May 1992 did not have the legal effect of terminating the
1977 Treaty and related instruments.
Dissolution of Czechoslovakia (paras. 117-124)
The Court then turns to the question whether Slovakia became a party to the 1977 Treaty
as successor to Czechoslovakia. As an alternative argument, Hungary contended that, even
if the Treaty survived the notification of termination, in any event it ceased to be in force
as a treaty on 31 December 1992, as a result of the "disappearance of one of the parties"
On that date Czechoslovakia ceased to exist as a legal entity, and on 1 January 1993 the
Czech Republic and the Slovak Republic came into existence.
The Court does not find it necessary for the purposes of the present case to enter into a
discussion of whether or not Article 34 of the 1978 Vienna Convention on Succession of
States in respect of treaties (in which a rule of automatic succession to all treaties is
provided for) reflects the state of customary international law. More relevant to its present
analysis is the particular nature and character of the 1977 Treaty. An examination of this
Treaty confirms that, aside from its undoubted nature as a joint investment, its major
elements were the proposed construction and joint operation of a large, integrated and
indivisible complex of structures and installations on specific parts of the respective
territories of Hungary and Czechoslovakia along the Danube. The Treaty also established
the navigational rgime for an important sector of an international waterway, in particular
the relocation of the main international shipping lane to the bypass canal. In so doing, it
inescapably created a situation in which the interests of other users of the Danube were
affected. Furthermore, the interests of third States were expressly acknowledged in Article
18, whereby the parties undertook to ensure "uninterrupted and safe navigation on the
international fairway" in accordance with their obligations under the Convention of 18
August 1948 concerning the Rgime of Navigation on the Danube.
The Court then refers to Article 12 of the 1978 Vienna Convention on Succession of
States in respect of Treaties, which reflects the principle that treaties of a territorial
character have been regarded both in traditional doctrine and in modern opinion as
unaffected by a succession of States. The Court considers that Article 12 reflects a rule of
customary international law; and notes that neither of the Parties disputed this. It
concludes that the content of the 1977 Treaty indicates that it must be regarded as
establishing a territorial rgime within the meaning of Article 12 of 1978 Vienna
Convention. It created rights and obligations "attaching to" the parts of the Danube to
which it relates; thus the Treaty itself could not be affected by a succession of States. The
Court therefore concludes that the 1977 Treaty became binding upon Slovakia on 1
January 1993.
Legal consequences of the Judgment (paras. 125-154)
The Court observes that the part of its Judgment which answers the questions in Article 2,
paragraph 1, of the Special Agreement has a declaratory character. It deals with
the past conduct of the Parties and determines the lawfulness or unlawfulness of that
conduct between 1989 and 1992 as well as its effects on the existence of the Treaty. Now
the Court has, on the basis of the foregoing findings, to determine what the future conduct
of the Parties should be. This part of the Judgment is prescriptive rather than declaratory
because it determines what the rights and obligations of the Parties are. The Parties will
have to seek agreement on the modalities of the execution of the Judgment in the light of
this determination, as they agreed to do in Article 5 of the Special Agreement.
In this regard it is of cardinal importance that the Court has found that the 1977 Treaty is
still in force and consequently governs the relationship between the Parties. That
relationship is also determined by the rules of other relevant conventions to which the two
States are party, by the rules of general international law and, in this particular case, by the
rules of State responsibility; but it is governed, above all, by the applicable rules of the 1977
Treaty as a lex specialis. The Court observes that it cannot, however, disregard the fact that
the Treaty has not been fully implemented by either party for years, and indeed that their
acts of commission and omission have contributed to creating the factual situation that
now exists. Nor can it overlook that factual situation or the practical possibilities and
impossibilities to which it gives rise when deciding on the legal requirements for the
future conduct of the Parties. What is essential, therefore, is that the factual situation as it
has developed since 1989 shall be placed within the context of the preserved and
developing treaty relationship, in order to achieve its object and purpose in so far as that is
feasible. For it is only then that the irregular state of affairs which exists as the result of the
failure of both Parties to comply with their treaty obligations can be remedied.
The Court points out that the 1977 Treaty is not only a joint investment project for the
production of energy, but it was designed to serve other objectives as well: the
improvement of the navigability of the Danube, flood control and regulation of ice-
discharge, and the protection of the natural environment. In order to achieve these
objectives the parties accepted obligations of conduct, obligations of performance, and
obligations of result. The Court is of the opinion that the Parties are under a legal
obligation, during the negotiations to be held by virtue of Article 5 of the Special
Agreement, to consider, within the context of the 1977 Treaty, in what way the multiple
objectives of the Treaty can best be served, keeping in mind that all of them should be
fulfilled.
It is clear that the Project's impact upon, and its implications for, the environment are of
necessity a key issue. In order to evaluate the environmental risks, current standards must
be taken into consideration. This is not only allowed by the wording of Articles 15 and 19,
but even prescribed, to the extent that these articles impose a continuing and thus
necessarily evolving obligation on the parties to maintain the quality of the water of the
Danube and to protect nature. The Court is mindful that, in the field of environmental
protection, vigilance and prevention are required on account of the often irreversible
character of damage to the environment and of the limitations inherent in the very
mechanism of reparation of this type of damage. New norms and standards have been
developed, set forth in a great number of instruments during the last two decades. Such
new norms have to be taken into consideration, and such new standards given proper
weight, not only when States contemplate new activities but also when continuing with
activities begun in the past. For the purposes of the present case, this means that the
Parties together should look afresh at the effects on the environment of the operation of
the Gabckovo power plant. In particular they must find a satisfactory solution for the
volume of water to be released into the old bed of the Danube and into the side-arms on
both sides of the river.
What is required in the present case by the rule pacta sunt servanda, as reflected in Article
26 of the Vienna Convention of 1969 on the Law of Treaties, is that the Parties find an
agreed solution within the co-operative context of the Treaty. Article 26 combines two
elements, which are of equal importance. It provides that "Every treaty in force is binding
upon the parties to it and must be performed by them in good faith". This latter element,
in the Court's view, implies that, in this case, it is the purpose of the Treaty, and the
intentions of the parties in concluding it, which should prevail over its literal application.
The principle of good faith obliges the Parties to apply it in a reasonable way and in such a
manner that its purpose can be realized.
The 1977 Treaty not only contains a joint investment programme, it also establishes a
rgime. According to the Treaty, the main structures of the System of Locks are the joint
property of the Parties; their operation will take the form of a co-ordinated single unit; and
the benefits of the project shall be equally shared. Since the Court has found that the
Treaty is still in force and that, under its terms, the joint rgime is a basic element, it
considers that, unless the Parties agree otherwise, such a rgime should be restored. The
Court is of the opinion that the works at Cunovo should become a jointly operated unit
within the meaning of Article 10, paragraph 1, in view of their pivotal role in the operation
of what remains of the Project and for the water-management rgime. The dam at
Cunovo has taken over the role which was originally destined for the works at Dunakiliti,
and therefore should have a similar status. The Court also concludes that Variant C, which
it considers operates in a manner incompatible with the Treaty, should be made to
conform to it. It observes that re-establishment of the joint rgime will also reflect in an
optimal way the concept of common utilization of shared water resources for the
achievement of the several objectives mentioned in the Treaty.
Having thus far indicated what in its view should be the effects of its finding that the 1977
Treaty is still in force, the Court turns to the legal consequences of the internationally
wrongful acts committed by the Parties, as it had also been asked by both Parties to
determine the consequences of the Judgment as they bear upon payment of damages.
The Court has not been asked at this stage to determine the quantum of damages due, but
to indicate on what basis they should be paid. Both Parties claimed to have suffered
considerable financial losses and both claim pecuniary compensation for them.
In the Judgment, the Court has concluded that both Parties committed internationally
wrongful acts, and it has noted that those acts gave rise to the damage sustained by the
Parties; consequently, Hungary and Slovakia are both under an obligation to pay
compensation and are both entitled to obtain compensation. The Court observes,
however, that given the fact, that there have been intersecting wrongs by both Parties, the
issue of compensation could satisfactorily be resolved in the framework of an overall
settlement if each of the Parties were to renounce or cancel all financial claims and
counter-claims. At the same time, the Court wishes to point out that the settlement of
accounts for the construction of the works is different from the issue of compensation,
and must be resolved in accordance with the 1977 Treaty and related instruments. If
Hungary is to share in the operation and benefits of the Cunovo complex, it must pay a
proportionate share of the building and running costs.
The operative paragraphs reads as follows:
"155. For these reasons,
THE COURT,
(1) Having regard to Article 2, paragraph 1, of the Special Agreement,
A. Finds, by fourteen votes to one, that Hungary was not entitled to suspend and
subsequently abandon, in 1989, the works on the Nagymaros Project and on the part of
the Gabckovo Project for which the Treaty of 16 September 1977 and related
instruments attributed responsibility to it;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui,
Guillaume, Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren,
Kooijmans, Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judge Herczegh;
B. Finds, by nine votes to six, that Czechoslovakia was entitled to proceed, in November
1991, to the "provisional solution" as described in the terms of the Special Agreement;
IN FAVOUR: Vice-President Weeramantry; Judges Oda, Guillaume, Shi, Koroma,
Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad hoc Skubiszewski;
AGAINST: President Schwebel; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Rezek;
C. Finds, by ten votes to five, that Czechoslovakia was not entitled to put into operation,
from October 1992, this "provisional solution";
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Kooijmans, Rezek;
AGAINST: Judges Oda, Koroma, Vereshchetin, Parra-Aranguren; Judge ad
hoc Skubiszewski;
D. Finds, by eleven votes to four, that the notification, on 19 May 1992, of the termination
of the Treaty of 16 September 1977 and related instruments by Hungary did not have the
legal effect of terminating them;
IN FAVOUR: Vice-President Weeramantry; Judges Oda, Bedjaoui, Guillaume, Ranjeva,
Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad hoc Skubiszewski;
AGAINST: President Schwebel; Judges Herczegh, Fleischhauer, Rezek;
(2) Having regard to Article 2, paragraph 2, and Article 5 of the Special Agreement,
A. Finds, by twelve votes to three, that Slovakia, as successor to Czechoslovakia, became a
party to the Treaty of 16 September 1977 as from 1 January 1993;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui,
Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad
hoc Skubiszewski;
AGAINST: Judges Herczegh, Fleischhauer, Rezek;
B. Finds, by thirteen votes to two, that Hungary and Slovakia must negotiate in good faith
in the light of the prevailing situation, and must take all necessary measures to ensure the
achievement of the objectives of the Treaty of 16 September 1977, in accordance with
such modalities as they may agree upon;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui,
Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans,
Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judges Herczegh, Fleischhauer;
C. Finds, by thirteen votes to two, that, unless the Parties otherwise agree, a joint
operational rgime must be established in accordance with the Treaty of 16 September
1977;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui,
Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans,
Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judges Herczegh, Fleischhauer;
D. Finds, by twelve votes to three, that, unless the Parties otherwise agree, Hungary shall
compensate Slovakia for the damage sustained by Czechoslovakia and by Slovakia on
account of the suspension and abandonment by Hungary of works for which it was
responsible; and Slovakia shall compensate Hungary for the damage it has sustained on
account of the putting into operation of the "provisional solution" by Czechoslovakia and
its maintenance in service by Slovakia;
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Bedjaoui,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Parra-Aranguren, Kooijmans,
Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judges Oda, Koroma, Vereshchetin;
E. Finds, by thirteen votes to two, that the settlement of accounts for the construction and
operation of the works must be effected in accordance with the relevant provisions of the
Treaty of 16 September 1977 and related instruments, taking due account of such measures
as will have been taken by the Parties in application of points 2 B and C of the present
operative paragraph.
IN FAVOUR: President Schwebel; Vice-President Weeramantry; Judges Oda, Bedjaoui,
Guillaume, Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans,
Rezek; Judge ad hoc Skubiszewski;
AGAINST: Judges Herczegh, Fleischhauer."
*
President SCHWEBEL and Judge REZEK append declarations to the Judgment of the
Court.
Vice-President WEERAMANTRY, Judges BEDJAOUI and KOROMA append separate
opinions to the Judgment of the Court.
Judges ODA, RANJEVA, HERCZEGH, FLEISCHHAUER, VERESHCHETIN and
PARRA-ARANGUREN, and Judge ad hoc SKUBISZEWSKI append dissenting opinions
to the Judgment of the Court.
(A summary of the declarations and of the opinions is attached.)
*
**
The above summary of the Judgment has been prepared by the Registry for the use of the
Press and in no way involves the responsibility of the Court. It cannot be quoted against
the text of the Judgment, of which it does not constitute an interpretation.
__________
Annex to Press Communiqu No. 97/10bis
Declaration of President Schwebel
I am largely in agreement with the Court's Judgment and accordingly I have voted for most
of its operative paragraphs. I have voted against operative paragraph 1 B essentially
because I view the construction of "Variant C", the "provisional solution", as inseparable
from its being put into operation. I have voted against operative paragraph 1 D essentially
because I am not persuaded that Hungary's position as the Party initially in breach
deprived it of a right to terminate the Treaty in response to Czechoslovakia's material
breach, a breach which in my view (as indicated by my vote on paragraph 1 B) was in train
when Hungary gave notice of termination.
At the same time, I fully support the conclusions of the Court as to what should be the
future conduct of the Parties and as to disposition of issues of compensation.
__________
Declaration of Judge Rezek
Judge Rezek considers that the 1977 Treaty is no longer in existence, since it has been
abrogated by the attitude of the two Parties. From that conclusion, however, he infers
consequences very similar to those which the majority infers from the continued existence
of the treaty. First, there is what has been accomplished, and accomplished in good faith.
There is, also and above all, the very principle of good faith which must lead here to the
fulfilment of reciprocal duties remaining from a treaty which has not been implemented
through the reciprocal fault of the two Parties.
__________
Separate opinion of Vice-President Weeramantry
Judge Weeramantry agreed with the majority of the Court in all their conclusions.
However, in his separate opinion, he addressed three questions dealing with aspects of
environmental law the principle of sustainable development in balancing the competing
demands of development and environmental protection, the principle of continuing
environmental impact assessment, and the question of the appropriateness of the use of
an inter partes legal principle such as estoppel in the resolution of issues with erga
omnes implications such as a claim that environmental damage is involved.
On the first question, his opinion states that both the right to development and the right to
environmental protection are principles currently forming part of the corpus of
international law. They could operate in collision with each other unless there was a
principle of international law which indicated how they should be reconciled. That
principle is the principle of sustainable development which, according to this opinion, is
more than a more concept, but is itself a recognized principle of contemporary
international law.
In seeking to develop this principle, the Court should draw upon prior human experience,
for humanity has lived for millennia with the need to reconcile the principles of
development and care for the environment. Sustainable development is therefore not a
new concept and, for developing it today, a rich body of global experience is available. The
opinion examines a number of ancient irrigation civilizations for this purpose. The Court,
as representing the main forms of civilization, needs to draw upon the wisdom of all
cultures, especially in regard to areas of international law which are presently in a
developmental phase. Among the principles that can be so derived from these cultures are
the principles of trusteeship of earth resources, intergenerational rights, protection of flora
and fauna, respect for land, maximization of the use of natural resources while preserving
their regenerative capacity, and the principle that development and environmental
protection should go hand in hand.
In his opinion, Judge Weeramantry stresses the importance of continuous environmental
impact assessment of a project as long as it continues in operation. The duty of
environmental impact assessment is not discharged merely by resort to such a procedure
before the commencement of a project. The standards to be applied in such continuous
monitoring are the standards prevalent at the time of assessment and not those in force at
the commencement of the project.
The third aspect of environmental law referred to is the question whether principles of
estoppel which might operate between parties are appropriate in matters such as those
relating to the environment, which are of concern not merely to the two Parties, but to a
wider circle. Questions involving duties of an erga omnes nature may not always be
appropriately resolved by rules of procedure fashioned for inter partes disputes. Judge
Weeramantry draws attention to this aspect as one which will need careful consideration.
__________
Separate opinion of Judge Bedjaoui
Judge Bedjaoui considers that the majority of the Court has not sufficiently clarified the
question of applicable law and that of the nature of the 1977 Treaty. On the first point, he
states that an "evolutionary interpretation" of the 1977 Treaty can only be applied if the
general rule of interpretation in Article 31 of the Vienna Convention on the Law of
Treaties is respected, and that the "definition" of a concept must not be confused with the
"law" applicable to that concept, nor should the "interpretation" of a treaty be confused
with its "revision". Judge Bedjaoui recommends that subsequent law be taken into account
only in very special situations. This applies in the present case. It is the first major case
brought before the Court in which the ecological background is so sensitive that it has
moved to centre stage, threatening to divert attention from treaty law. International
opinion would not have understood had the Court disregarded the new law, the
application of which was demanded by Hungary. Fortunately, the Court has been able to
graft the new law on to the stock of Articles 15, 19 and 20 of the 1977 Treaty. Nor was
Slovakia opposed to taking this law into consideration. However, in applying the so-called
principle of the evolutionary interpretation of a treaty in the present case, the Court should
have clarified the issue more and should have recalled that the general rule governing the
interpretation of a treaty remains that set out in Article 31 of the 1969 Vienna Convention.
As for the nature of the 1977 Treaty and its related instruments, in Judge Bedjaoui's view
this warranted more attention from the majority of the Court. It is a crucial question. The
nature of the Treaty largely conditions the succession of Slovakia to this instrument, which
constitutes the substance of the applicable law, and which remains in force
despite intersecting violations by both Parties.
The 1977 Treaty (including related instruments) has the threefold characteristic
of being a territorial treaty,
 of being a treaty to which Slovakia validly succeeded, and
of being a treaty which is still in force to day.
In substance, Judge Bedjaoui does not share the opinion of the majority of the Court as to
the legal characterization of Variant C, which he considers to be an offence, the
unlawfulness of which affects each of the acts of the construction of this variant. The
construction could be neither innocent nor neutral; it bore the stamp of the end purpose
of Variant C, which was the diversion of the waters of the river. It is therefore not possible
to separate construction on the one hand and diversion on the other; Variant C as a whole
is unlawful.
On a different subject, Judge Bedjaoui considers that both Parties, Hungary just as much as
Slovakia, have breached the 1977 Treaty. The situation created by them is characterized
by intersecting violations countering each other. However it is not easy to determine the
links of cause and effect in each case with certainty. The acts and conduct of the Parties
sometimes intercut. A deep mutual distrust has unfortunately characterized relations
between the parties for many years.
On the ground, these intersecting violations gave rise to a reality which the majority of the
Court did not deem it useful to characterize. For Judge Bedjaoui it seemed necessary and
important to note that these intersecting violations created two effectivits which will
continue to mark the landscape of the region in question.
Judge Bedjaoui indicated the significance to be attached to taking account of the
effectivits. In this case, taking account of the effectivits is not tantamount to a
negation of the title. The title does not disappear; it merely adapts and does so, moreover,
through involving the responsibility of the authors of these effectivits, who will be liable
for all the necessary compensation.
These effectivits, adapted as they have been or will be to fit the mould of a new treaty,
may have breached and exceeded the existing law, but the law reins them in and governs
them again in three ways:
these effectivits do not kill the Treaty, which survives them;
these effectivits do not go unpunished and entail sanctions and compensation;
and above all, these effectivits will be "recast", or inserted into the Treaty, whose new
content to be negotiated will serve as a legitimizing text for them.
Judge Bedjaoui finally turns to the necessity for the Parties to negotiate again and to do so
in good faith. The renegotiation must be seen as a strict obligation, exactly like the good
faith conduct it implies. This obligation flows not only from the Treaty itself, but also from
general international law as it has developed in the spheres of international watercourses
and the environment.
__________
Separate opinion of Judge Koroma
In his separate opinion, Judge Koroma stated that he supported the Court's findings that
Hungary was not entitled to suspend and subsequently to abandon the works on the
Project for which the Treaty had attributed responsibility to it, and that the Treaty
continues to be in force. These findings, in his view, were not only in accordance with the
Treaty but with the principle of pacta sunt servanda, one of the foremost principles of
international law and indeed an integral part of it. In Judge Koroma's view a contrary
finding would have suggested that at any time a State might unilaterally repudiate any treaty
when it found its obligation to be inconvenient; this, he maintained, would seriously
undermine the principle of pacta sunt servanda and the whole treaty relationship.
While he shares the Court's understanding of Hungary's concern about the effects of the
Project on its natural environment, he agreed that the material before the Court could not
justify the unilateral repudiation of the Treaty.
Judge Koroma, however, disagreed with the finding of the Court that Czechoslovakia was
not entitled to put Variant C into operation. He felt that this finding did not give sufficient
weight to the provisions of the Treaty, nor to the financial damage and environmental
harm that Czechoslovakia would have incurred and endured had the Project been left
uncompleted as Hungary's action dictated. He regarded Variant C as a genuine attempt to
implement the Treaty so as to realize its aim and objective.
He also did not agree that the Court appeared to treat the consequences of the Parties'
"wrongful conduct" as if they were equivalent.
__________
Dissenting opinion of Judge Oda
Judge Oda has voted against operative paragraph 1 C, since, in his view, not only the
construction, but also the operation of the Cunovo dam was simply the execution of the
Project as described in the 1977 Treaty between Czechoslovakia and Hungary concerning
the Gabckovo-Nagymaros System of Locks. He considers that the provisional solution,
Variant C, was the only possible option for fulfilment of the original Project on the river
Danube. Judge Oda does not understand why the Court decided that, while the
construction of Variant C that is to say, the Cunovo dam is lawful, the operation of
it is a wrongful act.
Judge Oda made a clear distinction between the Joint Contractual Plan (JCP), as the
execution of the Project, and the 1977 Treaty, which underlies the whole Project and
which had been worked out over a period of several decades. The JCP, which is similar to
a "partnership" contract should have been subject to amendment and revision, as proved
necessary, in a more flexible manner.
The fundamental purpose of the 1977 Treaty was, in his view, to carry out the construction
of the bypass canal and of the power plants at the dams of Gabckovo and Nagymaros.
Firstly, Hungary's failure to perform its treaty obligations cannot be justified on the basis
of the new international norm of environmental protection. The whole Project and the
1977 Treaty, in particular, were undoubtedly sketched out in the 1970s with due
consideration for the environment of the river Danube. There is no proof with which to
overturn this assumption. Secondly, it was not a violation of the Treaty for Czechoslovakia
to proceed to the provisional solution Variant C as the only option open to it in
order to carry out the basic Project in the event of Hungary failing to fulfil its obligation to
construct the Dunakiliti dam.
With regard to future negotiations between the Parties on the modalities of the execution
of the Judgment, as agreed upon in the Special Agreement, Judge Oda suggests that the
JCP be modified in order to include the work on the Cunovo dam which enabled the
whole Project to be accomplished. As far as the environment is concerned, the Parties
should proceed to an assessment of the environment of the river Danube in an effort to
seek out technological solutions limiting or remedying any environmental damage caused
by Czechoslovakia's construction of the bypass canal and Hungary's abandonment of the
Nagymaros dam.
The damages and losses suffered by Czechoslovakia owing to Hungary's failure to fulfil its
Treaty obligations must be compensated. However, Hungary's abandonment of the
Nagymaros dam, though that dam formed a part of the whole Project, did not cause any
practical damage to Czechoslovakia. Hungary must bear a part of the cost of construction
of the Cunovo dam, as that work gave life to the whole Project. It may well be admitted,
however, that the whole Project (that is, the bypass canal and the Gabckovo power plant
on that canal) are simply of benefit to Czechoslovakia and Slovakia, and that Hungary has
nothing to gain from it. This point should be taken into account when the matter of
compensation for loss and damage to be paid by Hungary to Slovakia is considered.
__________
Dissenting opinion of Judge Ranjeva
Judge Ranjeva disagreed with the majority of the Court in that in paragraph 155 1 C the
Judgment restricts the unlawfulness of Variant C to its being put into operation and
maintained in service to date. Judge Ranjeva first remarks that there is a contradiction in
terms of logic between subparagraphs B and C of this same paragraph of the operative
part. How can the construction of this Variant C be acknowledged to be lawful at the same
time as putting it into operation is declared to be unlawful? The Judgment, in his opinion,
came to this conclusion because it restricted the significance of the reciprocal wrongs
ascribable to Hungary and to Czechoslovakia and Slovakia to the sole issue of the
obligation to compensate for the consequences of the damage; in so doing, the Court
resurrected a rule of Roman law, the rule of Pomponius. However the Court failed to
examine the significance of these intersecting wrongs on another point: the causality in the
sequence of events leading to the situation which is the subject of the dispute before the
Court. For Judge Ranjeva, the circumstances of fact against a background of chaotic
relations marked by distrust and suspicion not only made it difficult to identify the original
cause of this situation but above all resulted in the fact that a wrong committed by one of
the Parties triggered off a wrong committed by the other. Taking a position counter to the
linear analysis of the Court, for the author it is not a matter of several wrongs which merely
succeed each other but of distinct wrongs which gradually contributed to creating the
situation which is the subject of the present dispute. The conclusion drawn by Judge
Ranjeva is that the unlawfulness of the Hungarian decision, a decision which was
undeniably unlawful, was not the cause but the ground or motive taken into consideration
by Czechoslovakia then by Slovakia in order to justify their subsequent conduct. The
second conclusion reached by the author relates to the lawfulness of Variant c. In his
opinion, the distinction made between proceeding to the provisional solution and putting
into operation is in fact an artificial one; it would have been plausible if there had been true
equipollence between these two elements and if one of the elements could not absorb the
other. Proceeding to the provisional solution was significant only if it was carried through.
Thus the unlawfulness of Variant C, for Judge Ranjeva, resided not so much in its
construction or commissioning, or even in the diversion of the Danube, but in replacing an
international project by a national project; Variant C could not be related to any obligation
under the 1977 Treaty once the Court rightly dismissed the idea of an approximate
application or of an obligation to limit damage in treaty law.
__________
Dissenting opinion of Judge Herczegh
The dissenting opinion exhaustively presents the case for the existence of a state of
necessity on the part of Hungary with regard to the construction of the Nagymaros dam. It
holds that not only the putting into operation by Czechoslovakia of the "provisional
solution", called "Variant C", but also the proceeding to this solution constituted a serious
breach of the 1977 Treaty. Hungary was therefore justified in terminating the Treaty. Judge
Herczegh consequently voted against the points of the operative part which refer expressly
to the Treaty, but voted for mutual compensation by Slovakia and by Hungary for the
damage each sustained on account of the construction of the system of locks forming the
subject of the dispute.
__________
Dissenting opinion of Judge Fleischhauer
Judge Fleischhauer dissents on the Court's central finding that Hungary's notification of 19
May 1992 of the termination of the 1977 Treaty did not have the effect of terminating it, as
the notification is found to have been premature and as Hungary is said to have forfeited
its right to terminate by its own earlier violation of the Treaty. The Judge shares the finding
of the Court that Hungary has violated its obligations under the 1977 Treaty when it
suspended, in 1989, and later abandoned, its share in the works on the Nagymaros and on
part of the Gabckovo Project. He also agrees with the conclusion that Czechoslovakia
was not entitled to put into operation, as from October 1992, Variant C, a unilateral
solution which implies the appropriation by Czechoslovakia and later Slovakia, essentially
for own use, of 80 to 90 per cent of the waters of the Danube in the Treaty area, and is
therefore not proportionate. However, he is of the view that when Czechoslovakia, in
November 1991, moved into construction of Variant C, the point of no return was passed
on both sides; at that point in time it was certain that neither would Hungary come back to
the Treaty nor would Czechoslovakia agree to further delaying the damming of the
Danube. The internationally wrongful act therefore was not confined to the actual
damming of the river, but started in November 1991, more than six months prior to
Hungary's notification of termination. Judge Fleischhauer thinks, moreover, that Hungary,
although it had breached the Treaty first, had not forfeited its right to react to Variant C by
termination of the Treaty, because international law does not condone retaliation that goes
beyond the limits of proportionality. In situations like this, the corrective element rather
lies in a limitation of the first offender's right to claim redress. As he considers the validity
of the Treaty as having lapsed, he has voted against the conclusions of the Court on the
consequences of the Judgment inasmuch as they are based on the continuing validity of the
Treaty (2 A, B, C, E). In his view the installations on Slovak territory do not have to be
dismantled, but in order to lawfully continue to use them Slovakia will have to negotiate
with Hungary a water-management rgime. Hungary does not have to construct
Nagymaros any more, but Slovakia is no longer committed to the joint running of the
Project.
__________
Dissenting opinion of Judge Vereshchetin
Judge Vereshchetin takes the view that Czechoslovakia was fully entitled in international
law to put into operation from October 1992 the "provisional solution" (Variant C) as a
countermeasure so far as its partner in the Treaty persisted in violating its obligations.
Therefore, he could not associate himself with paragraph 155 1 C of the Judgment, nor
fully with paragraph 155 2 D.
According to the Court's jurisprudence, established wrongful acts justify "proportionate
countermeasures on the part of the State which ha[s] been the victim of these acts ..."
(Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Judgment, I.C.J. Reports 1986, p. 127, para. 249). In the view of the Judge
Vereshchetin, all the basic conditions for a countermeasure to be lawful were met when
Czechoslovakia put Variant C into operation in October 1992. These conditions include:
(1) the presence of a prior illicit act, committed by the State at which the countermeasure is
targeted; (2) the necessity of the countermeasure; and (3) its proportionality in the
circumstances of the case.
Recognizing that the test of proportionality is very important in the rgime of
countermeasures, Judge Vereshchetin believes the Court should have assessed and
compared separately: (1) the economic and financial effects of the breach as against the
economic and financial effects of the countermeasure; (2) the environmental effects of the
breach as against the environmental effects of the countermeasure; and (3) the effects of
the breach on the exercise of the right to use commonly shared water resources as against
the effects of the countermeasure on the exercise of this right.
Judge Vereshchetin makes his assessment of those effects and observes in conclusion that
even assuming that Czechoslovakia, as a matter of equity, should have discharged more
water than it actually did into the old river bed, this assumption would have related to only
one of the many aspects of the proportionality of the countermeasure, which could not in
itself warrant the general conclusion of the Court that Czechoslovakia was not entitled to
put Variant C into operation from October 1992.
__________
Dissenting opinion of Judge Parra-Aranguren
My vote against paragraph 1 C of the operative part of the Judgment is the consequence of
the recognition that Hungary was not entitled to suspend and subsequently abandon, in
1989, the works which were its responsibility, in accordance with the Treaty of 16
September 1977 and related instruments. Because of that the position of Czechoslovakia
was extremely difficult, not only for the huge sums invested so far but also for the
environmental consequences of leaving unfinished and useless the constructions already in
place, almost complete in some sections of the Gabckovo Project. Faced with that
situation, in my opinion, Czechoslovakia was entitled to take all necessary action and for
that reason the construction and putting into operation of the "provisional solution"
(Variant C) cannot be considered an internationally wrongful act. Therefore, in principle,
Slovakia shall not compensate Hungary on the account of the construction and putting
into operation of "the provisional solution" (Variant C) and its maintenance in service by
Slovakia, unless a manifest abuse of rights on its part is clearly evidenced.
In my opinion, paragraph 2 A, of the operative part of the Judgment should not have been
included, because the succession of Slovakia to the 1977 Treaty was neither a question
submitted to the Court in the Special Agreement, nor is it a legal consequence arising out
of the decision of the questions submitted by the Parties in its Article 2, paragraph 1.
Furthermore, the answer of the Court is incomplete, since nothing is said in respect to the
"related instruments" to the 1977 Treaty; and it does not take into consideration the
position adopted by the dissenting judges who maintained that the 1977 Treaty was no
longer in force.
__________
Dissenting opinion of Judge ad hoc Skubiszewski
While agreeing with the Court in all its other holdings, Judge ad hoc Skubiszewski is unable
to concur in the broad finding that Czechoslovakia was not entitled to put Variant C into
operation from October 1992 (Judgment, para. 155, point 1 C). The finding is too general.
In his view the Court should have distinguished between, on the one hand,
Czechoslovakia's right to take steps to execute and operate certain works on her territory
and, on the other, her responsibility (and, subsequently, that of Slovakia) towards Hungary
resulting from the diversion of most of the waters of the Danube into Czechoslovak
territory, especially in the period preceding the conclusion of the Hungarian-Slovak
Agreement of 19 April 1995.
The withdrawal of Hungary from the Project left Czechoslovakia with the legal possibility
of doing on her territory what she was allowed to do by general law on international rivers.
As a whole, the "provisional solution" was and is lawful. That evaluation is not changed by
one element of it, i.e., sharing of the waters of the Danube, which called for redress and
remedy. Having recognized the serious problems with which Czechoslovakia was
confronted as a result of Hungary's action, the Court should have applied equity as part of
international law. It would then arrive at a holding that would have given more nuance to
its decision.
Notwithstanding the Parties' mutual legal claims for compensation much speaks in favour
of a "zero option" (Judgment, para. 153). That option should facilitate the settlement of
the dispute.