EN BANC
Franklin D. Roosevelt, called into the service of the Armed
G.R. No. L-10500 June 30, 1959
USAFFE VETERANS ASSOCIATION, INC., plaintiff-appellant,
vs.
THE TREASURER OF THE PHILIPPINES, ET AL., defendants-
appellees.
Lorenzo B. Camins, Castor C. Ames and Alberto M. K. Jamir for
appellant.
Office of the Solicitor General Ambrosio Padilla, Assistant
Solicitor General Jose P. Alejandro and Solicitor Jorge R. Coquia
for appellees.
BENGZON, J.:
The central issue in this litigation concerns the validity of the
Romulo-Snyder Agreement (1950) whereby the Philippine
Government undertook to return to the United States
Government in ten annual installments, a total of about 35-
million dollars advanced by the United States to, but
unexpanded by, the National Defense Forces of the
Philippines.
In October 1954, the USAFFE Veterans Associations Inc.,
hereafter called Usaffe Veterans, for itself and for many other
Filipino veterans of World War II, ex-members of the United
States Armed Forces in the Far East (USAFFE) prayed in its
complaint before the Manila court of first instance that said
Agreement be annulled, that payments thereunder be
declared illegal and that defendants as officers of the
Philippine Republic be restrained from disbursing any funds in
the National Treasury in pursuance of said Agreement. Said
Usaffe Veterans further asked that the moneys available,
instead of being remitted to the United States, should be
turned over to the Finance Service of the Armed Forces of the
Philippines for the payment of all pending claims of the
veterans represented by plaintiff.
The complaint rested on plaintiff's three propositions: first,
that the funds to be "returned" under the Agreement were
funds appropriated by the American Congress for the
Philippine army, actually delivered to the Philippine
Government and actually owned by said Government; second,
that U.S. Secretary Snyder of the Treasury, had no authority to
retake such funds from the P.I. Government; and third, that
Philippine foreign Secretary Carlos P. Romulo had no authority
to return or promise to return the aforesaid sums of money
through the so-called Romulo-Snyder Agreement.
The defendants moved to dismiss, alleging Governmental
immunity from suit. But the court required an answer, and
then heard the case merits. Thereafter, it dismissed the
complaint, upheld the validity of the Agreement and dissolved
the preliminary injunction i had previously issued. The plaintiff
appealed.
On July 26, 1941, foreseeing the War in the Pacific, President
Forces of the United States, for the duration of the emergency,
all the organized military forces of the Philippine
Commonwealth. His order was published here by
Proclamation No. 740 of President Quezon on August 10, 1941.
In October 1941, by two special orders, General Douglas
MacArthur, Commanding General of the United States Army
Forces in the Far East (known as USAFFE) placed under his
command all the Philippine Army units including the Philippine
Constabulary, about 100,000 officers and soldiers.
For the expenses incident to such incorporation, mobilization
and activities, the Congress of the United States provided in its
Appropriation Act of December 17, 1941 (Public Law No. 353,
77th Congress) as follows:
For all expenses necessary for the mobilization, operation and
maintenance of the Army of the Philippines, including
expenses connected with calling into the service of the armed
forces of the United States the organized military forces of the
Government of the Commonwealth of the Philippines, . . . but
shall be expanded and accounted for in the manner prescribed
by the President of the United States, S269,000.00; to remain
available until June 30, 1943, which shall be available for
payment to the Government of the Commonwealth of the
Philippines upon its written request, either in advance of or in
reimbursement for all or any part of the estimated or actual
costs, as authorized by the Commanding General, United
States Army Forces in the Far East, of necessary expenses for
the purposes aforesaid. . . . (Emphasis Ours.)
In subsequent Acts, the U.S. Congress appropriated moneys in
language identical to the above: S28,313,000.00 for the fiscal
year ending June 30, 1943; and S100,000,000 each year, for the
fiscal years ending June 30, 1944, June 30, 1945, and June 30,
1946.1 The last pertinent appropriation was Public law No. 301
(79th Congress) known as the Rescission Act. It simply set aside
200 million dollars for the Army for the fiscal year ending June
30, 1946.
Now, pursuant to the power reserved to him under Public Law
353 above-quoted, President Roosevelt issued on January 3,
1942, his executive Order No. 9011 prescribing partly as
follows:
2. (a) Necessary expenditures from funds in the Philippine
Treasury for the purposes authorized by the Act of December
17, 1941, will be made by disbursing officers of the Army of the
Philippines on the approval of authority of the Commanding
General, United States Army Forces in the Far East, and such
purposes as he may deem proper, and his determination
thereon shall be final and conclusive upon the accounting
officers of the Philippine Government, and such expenditures
will be accounted for in accordance with procedures
established by the Philippine Commonwealth Laws and
regulations. (Emphasis Ours.)
Out of the total amounts thus appropriated by the United
States Congress as above itemized, P570,863,000.00 was
transferred directly to the Philippines Armed Forces by means
of vouchers which stated "Advance of Funds under Public law
353-77th Congress and Executive Order No. 9011". This
amount was used (mostly) to discharge in the Philippine
Islands the monetary obligations assumed by the U.S.
Government as a result of the induction of the Philippine
Armed Forces into the U.S. Army, and of its operations
beginning in 1941. Part of these obligations consisted in the
claims of Filipino USAFFE soldiers for arrears in pay and in the
charges for supplies used by them and the guerrillas.
Of the millions so transferred, there remained unexpended
and uncommitted in the possession of the Philippine Armed
Forces as of December 31, 1949 about 35 million dollars. As at
that time, the Philippine Government badly needed funds for
its activities, President Quirino, through Governor Miguel
Cuaderno of the Central Bank proposed to the corresponding
officials of the U.S. Government the retention of the 35-million
dollars as a loan, and for its repayment in ten annual
installments. After protracted negotiations the deal was
concluded, and the Romulo-Snyder Agreement was signed in
Washington on November 6, 1950, by the then Philippine
Secretary of Foreign Affairs, Carlos P. Romulo, and the then
American Secretary of the Treasury, John W. Snyder.
Principal stipulation therein was this paragraph:
3. The Government of the Republic of the Philippines further
agrees to pay the dollar amount payable hereunder to the
Secretary of the Treasury of the United States in ten annual
installments, the first nine payments to be in the amount of
S3,500,000.00 and the final residual payment to be in the
amount determined by deducting the total of the previous
principal payments from the total amount of dollars to be paid
to the Secretary of the Treasury of the United States, the latter
amount to be determined as provided in Article II hereof. . . .
It should be added that the agreement, made on the basis of
the parties' belief that S35-million was the outstanding
balance, provided in its article II for an audit by appropriate
officers to compute the exact amount due.
In compliance with the Agreement, this Government has
appropriated by law and paid to the United States up to and
including 1954, yearly installments totaling of P33,187,663.24.
There is no reason to doubt that subsequent budgets failed to
make the corresponding appropriations for other installments.
In this appeal, the Usaffe Veterans reiterated with extended
arguments, their basic propositions. They insists: first, the
money delivered to the U.S. to the Armed Forces of the
Philippine Island were straight payments for military services;
ownership thereof vested in the Philippine Government upon
delivery, and consequently, there was nothing to return,
nothing to consider as a loan; and second, the Romulo-Snyder
Agreement was void because it was not binding on the
Philippine Government for lack of authority of the officers who
concluded the same.
With regard to the first point, it must be remembered that the
first Congressional Act of December 17, 1941 (Public Law No.
353) appropriating S269-million expressly said the amount
"shall be available for payment to the Government of the
Commonwealth of the Philippines upon its written request,
either in advance of or in reimbursement for all or any part of
the estimated or actual costs" of operation, mobilization and
maintenance of the Philippine Army. Note carefully, the
money is to handled to the Philippine Government either in
advance of expenditures or in reimbursement thereof. All the
vouchers signed upon receipt of the money state clearly, "
Advance of funds under Public law 353-7th Congress and
Executive Order No. 9011".
In any system of accounting, advances of funds for
expenditures contemplate disbursements to be reported, and
credited if approved, against such advances, the unexpended
sums to be returned later. In fact, the Congressional law itself
required accounting "in the manner prescribed by the
President of the U.S." and said President in his Executive Order
No. 9011, outlined the procedure whereby advanced funds
shall be accounted for. Furthermore, it requires as a condition
sine qua non that all expenditures shall first be approved by
the Commanding General, United States Army Forces Army
Forces in the Far East.
Now, these ideas of "funds advanced" to meet such
expenditures of the Philippine Army as may be approved by
the USAFFE Commanding-General, in connection with the
requirement of accounting therefor evidently contradict
appellant's thesis that the moneys represented straight
payments to the Philippine Government for its armed services,
and passed into the absolute control of such Government.
In fact, the respective army officers of both nations,2 who are
presumed to know their business, have consistently regarded
the money as funds advanced, to be subsequently accounted
for — which means submission of expenditures, and if
approved, return of unexpended balance.
Now then, it is undeniable that upon a final rendition of
accounts by the Philippine Government, a superabit resulted
of at least 35 million dollars in favor of the U. S. Instead of
returning such amount in one lump sum, our Executive
Department arranged for its repayment in ten annual
installments. Prima facie such arrangement should raise no
valid objection, given the obligation to return-which we know
exists.
Yet plaintiff attempts to block such repayment because many
alleged claims of veterans have not been processed and paid,
December 31, 1949, having been fixed as the deadline for the
presentation and/or payment of such claims. Plaintiff
obviously calculates that if the return is prevented and the
money kept here, it might manage to persuade the powers-
that-be extend the deadline anew. Hence the two-pronged
attack: (a) no obligation to repay; (b) the officers who
promised to repay had no authority to bind this Government.
The first ground has proved untenable.
On the second, there is no doubt that President Quirino
approved the negotiations. And he had power to contract
budgetary loans under Republic Act No. 213, amending the
Republic Act No. 16. The most important argument, however,
rests on the lack of ratification of the Agreement by the Senate
of the Philippines to make it binding on this Government. On
this matter, the defendants explain as follows:
That the agreement is not a "treaty" as that term is used in the
Constitution, is conceded. The agreement was never
submitted to the Senate for concurrence (Art. VII, Sec. 10 (7).
However, it must be noted that treaty is not the only form that
an international agreement may assume. For the grant of the
treaty-making power to the Executive and the Senate does not
exhaust the power of the government over international
relations. Consequently, executive agreements may be
entered with other states and are effective even without the
concurrence of the Senate (Sinco, Philippine Political Law, 10th
ed., 303; Tañada and Fernando, Constitution of the Philippines,
4th ed., Vol. II, 1055). It is observed in this connection that
from the point of view of the 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 (Hackworth,
Digest of International Law, Vol. 5, 395, citing U. S. vs. Belmont,
301 U. S. 342, State of Russia vs. National City Bank of New
York, 69 F. (2d) 44; United States vs. Pink, 315 U. S. 203; Altman
& Co., vs. United States, 224 U. S. 583. See also McDougal and
Lans, "Treaties and Executive Agreements 54 Yale Law Journal
181, 318, et seg.; and Sinco; Op. cit. 305) "The distinction
between so-called executive agreements" and "treaties" is
purely a constitutional one and has no international legal
significance" (Research in International Law Draft Convention
on the Law of Treaties (Harvard Law School), Comment, 29 Am.
J. Int.) Law Supp. 653, 897. See also Hackworth, op. cit. 391).
There are now various forms of such pacts or agreements
entered into by and between sovereign states which do not
necessarily come under the strict sense of a treaty and which
do not require ratification or consent of the legislative body of
the State, but nevertheless, are considered valid international
agreements. In a survey of the practice of States made by
Harvard Research in the Draft Convention in the Law of
Treaties (1935, pp. 711-713) it has been shown that there had
been more executive agreements entered into by States than
treaties (Hudson, International Legislation, I, p. ixii-xcvii).
In the leading case of Altman vs, U. S., 224, U. S. 583, it was
held that "an international compact negotiated between the
representatives of two sovereign nations and made in the
name and or behalf of the contracting parties and dealing with
important commercial relations between the two countries, is
a treaty both internationally although as an executive
agreement it is not technically a treaty requiring the advice and
consent of the Senate. (Herbert Briggs, The Law of Nations,
1947 ed., p. 489).
Nature of Executive Agreements.
Executive Agreements fall into two classes: (1) agreements
made purely as executive acts affecting external relations and
independent of or without legislative authorization, which
may be termed as presidential agreements and (2)
agreements entered into in pursuants of acts of Congress,
which have been designated as Congressional-Executive
Agreements (Sinco, supra, 304; Hackworth, supra, 390;
McDougal and Lans, supra, 204-205; Hyke, International Law,
2nd ed., Vol. II; et seq.)
The Romulo-Snyder Agreement may fall under any of these
two classes, for precisely on September 18, 1946, Congress of
the Philippines specifically authorized the President of the
Philippines to obtain such loans or incur such indebtedness
with the Government of the United States, its agencies or
instrumentalities (Republic Act No. 16, September 18, 1946,
amended by Republic Act No. 213, June 1, 1948). . . .
Even granting, arguendo, that there was no legislative
authorization, it is hereby maintained that the Romulo-
Snyder Agreement was legally and validly entered into to
conform to the second category, namely, "agreements
entered into purely as executive acts without legislative
authorization." This second category usually includes money
agreements relating to the settlement of pecuniary claims of
citizens. It may be said that this method of settling such
claims has come to be the usual way of dealing with matters
of this kind (Memorandum of the Solicitor of the Department
of State (Nielson) sent to Senator Lodge by the Under-
Secretary of State (Philip), August 23, 1922, MS Dept. of State,
file 711.00/98a).
Such considerations seems persuasive; indeed, the Agreement
was not submitted to the U.S. Senate either; but we do not
stop to check the authorities above listed nor test the
conclusions derived therefrom in order to render a definite
pronouncement, for the reason that our Senate Resolution No.
153 practically admits the validity and binding force of such
Agreement. Furthermore, the acts of Congress Appropriating
funds for the yearly installments necessary to comply with
such Agreements constitute a ratification thereof, which
places the question the validity out of the Court's reach, no
constitutional principle having been invoked to restrict
Congress' plenary power to appropriate funds-loan or no loan.
In conclusion, plaintiff, to say the least, failed to make a clear
case for the relief demanded; its petition was therefore,
properly denied.
Paras, C.J., Padilla, Montemayor, Bautista Angelo, Labrador,
Concepcion, Endencia and Barrera, JJ., concur.

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. 443[8] recommending the concurrence of the
Senate to the VFA and the creation of a Legislative Oversight
Committee to oversee its implementation. Debates then
ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was
approved by the Senate, by a two-thirds (2/3) vote[9] of its
members. Senate Resolution No. 443 was then re-numbered
as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an
Exchange of Notes between respondent Secretary Siazon and
United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles,
provides for the mechanism for regulating the circumstances
and conditions under which US Armed Forces and defense
personnel may be present in the Philippines, and is quoted in
its full text, hereunder:
Article I
Definitions
As used in this Agreement, United States personnel means
United States military and civilian personnel temporarily in the
Philippines in connection with activities approved by the
Philippine Government.
Within this definition:
1. The term military personnel refers to military members of
the United States Army, Navy, Marine Corps, Air Force, and
Coast Guard.
2. The term civilian personnel refers to individuals who are
neither nationals of, nor ordinary residents in the Philippines
and who are employed by the United States armed forces or
who are accompanying the United States armed forces, such
as employees of the American Red Cross and the United
Services Organization.
Article II
Respect for Law
It is the duty of the United States personnel to respect the laws
of the Republic of the Philippines and to abstain from any
activity inconsistent with the spirit of this agreement, and, in
particular, from any political activity in the Philippines. The
Government of the United States shall take all measures within
its authority to ensure that this is done.
Article III
Entry and Departure
1. The Government of the Philippines shall facilitate the
admission of United States personnel and their departure from
the Philippines in connection with activities covered by this
agreement.
2. United States military personnel shall be exempt from
passport and visa regulations upon entering and departing the
Philippines.
3. The following documents only, which shall be presented on
demand, shall be required in respect of United States military
personnel who enter the Philippines:
(a) personal identity card issued by the appropriate United
States authority showing full name, date of birth, rank or grade
and service number (if any), branch of service and photograph;
(b) individual or collective document issued by the appropriate
United States authority, authorizing the travel or visit and
identifying the individual or group as United States military
personnel; and
(c) the commanding officer of a military aircraft or vessel shall
present a declaration of health, and when required by the
cognizant representative of the Government of the
Philippines, shall conduct a quarantine inspection and will
certify that the aircraft or vessel is free from quarantinable
diseases. Any quarantine inspection of United States aircraft or
United States vessels or cargoes thereon shall be conducted by
the United States commanding officer in accordance with the
international health regulations as promulgated by the World
Health Organization, and mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa
requirements but shall present, upon demand, valid passports
upon entry and departure of the Philippines.
5. If the Government of the Philippines has requested the
removal of any United States personnel from its territory, the
United States authorities shall be responsible for receiving the
person concerned within its own territory or otherwise
disposing of said person outside of the Philippines.
Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or
fee, a driving permit or license issued by the appropriate
United States authority to United States personnel for the
operation of military or official vehicles.
2. Vehicles owned by the Government of the United States
need not be registered, but shall have appropriate markings.
Article V
Criminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United
States personnel with respect to offenses committed within
the Philippines and punishable under the law of the
Philippines.
(b) United States military authorities shall have the right to
exercise within the Philippines all criminal and disciplinary
jurisdiction conferred on them by the military law of the
United States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over
United States personnel with respect to offenses, including
offenses relating to the security of the Philippines, punishable
under the laws of the Philippines, but not under the laws of the
United States.
(b) United States authorities exercise exclusive jurisdiction
over United States personnel with respect to offenses,
including offenses relating to the security of the United States,
punishable under the laws of the United States, but not under
the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this
article, an offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to
national defense.
3. In cases where the right to exercise jurisdiction is
concurrent, the following rules shall apply:
(a) Philippine authorities shall have the primary right to
exercise jurisdiction over all offenses committed by United
States personnel, except in cases provided for in paragraphs
1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary
right to exercise jurisdiction over United States personnel
subject to the military law of the United States in relation to.
(1) offenses solely against the property or security of the
United States or offenses solely against the property or person
of United States personnel; and
(2) offenses arising out of any act or omission done in
performance of official duty.
(c) The authorities of either government may request the
authorities of the other government to waive their primary
right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military
authorities to maintain good order and discipline among their
forces, Philippine authorities will, upon request by the United
States, waive their primary right to exercise jurisdiction except
in cases of particular importance to the Philippines. If the
Government of the Philippines determines that the case is of
particular importance, it shall communicate such
determination to the United States authorities within twenty
(20) days after the Philippine authorities receive the United
States request.
(e) When the United States military commander determines
that an offense charged by authorities of the Philippines
against United states personnel arises out of an act or omission
done in the performance of official duty, the commander will
issue a certificate setting forth such determination. This
certificate will be transmitted to the appropriate authorities of
the Philippines and will constitute sufficient proof of
performance of official duty for the purposes of paragraph
3(b)(2) of this Article. In those cases where the Government of
the Philippines believes the circumstances of the case require
a review of the duty certificate, United States military
authorities and Philippine authorities shall consult
immediately. Philippine authorities at the highest levels may
also present any information bearing on its validity. United
States military authorities shall take full account of the
Philippine position. Where appropriate, United States military
authorities will take disciplinary or other action against
offenders in official duty cases, and notify the Government of
the Philippines of the actions taken.
(f) If the government having the primary right does not
exercise jurisdiction, it shall notify the authorities of the other
government as soon as possible.
(g) The authorities of the Philippines and the United States
shall notify each other of the disposition of all cases in which
both the authorities of the Philippines and the United States
have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities
of the Philippines and United States shall assist each other in
the arrest of United States personnel in the Philippines and in
handling them over to authorities who are to exercise
jurisdiction in accordance with the provisions of this article.
5. United States military authorities shall promptly notify
Philippine authorities of the arrest or detention of United
States personnel who are subject of Philippine primary or
exclusive jurisdiction. Philippine authorities shall promptly
notify United States military authorities of the arrest or
detention of any United States personnel.
6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside
with United States military authorities, if they so request, from
the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon
formal notification by the Philippine authorities and without
delay, make such personnel available to those authorities in
time for any investigative or judicial proceedings relating to the
offense with which the person has been charged in
extraordinary cases, the Philippine Government shall present
its position to the United States Government regarding
custody, which the United States Government shall take into
full account. In the event Philippine judicial proceedings are
not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one-year
period will not include the time necessary to appeal. Also, the
one-year period will not include any time during which
scheduled trial procedures are delayed because United States
authorities, after timely notification by Philippine authorities
to arrange for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and
Philippine authorities shall assist each other in the carrying out
of all necessary investigation into offenses and shall cooperate
in providing for the attendance of witnesses and in the
collection and production of evidence, including seizure and,
in proper cases, the delivery of objects connected with an
offense.
8. When United States personnel have been tried in
accordance with the provisions of this Article and have been
acquitted or have been convicted and are serving, or have
served their sentence, or have had their sentence remitted or
suspended, or have been pardoned, they may not be tried
again for the same offense in the Philippines. Nothing in this
paragraph, however, shall prevent United States military
authorities from trying United States personnel for any
violation of rules of discipline arising from the act or omission
which constituted an offense for which they were tried by
Philippine authorities.
9. When United States personnel are detained, taken into
custody, or prosecuted by Philippine authorities, they shall be
accorded all procedural safeguards established by the law of
the Philippines. At the minimum, United States personnel shall
be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or
charges made against them and to have reasonable time to
prepare a defense;
(c) To be confronted with witnesses against them and to cross
examine such witnesses;
(d) To present evidence in their defense and to have
compulsory process for obtaining witnesses;
(e) To have free and assisted legal representation of their own
choice on the same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly
by United States authorities, and to have such authorities
present at all judicial proceedings. These proceedings shall be
public unless the court, in accordance with Philippine laws,
excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of
United States personnel shall be carried out in facilities agreed
on by appropriate Philippine and United States authorities.
United States Personnel serving sentences in the Philippines
shall have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in
Philippine courts of ordinary jurisdiction, and shall not be
subject to the jurisdiction of Philippine military or religious
courts.
Article VI
Claims
1. Except for contractual arrangements, including United
States foreign military sales letters of offer and acceptance and
leases of military equipment, both governments waive any and
all claims against each other for damage, loss or destruction to
property of each others armed forces or for death or injury to
their military and civilian personnel arising from activities to
which this agreement applies.
2. For claims against the United States, other than contractual
claims and those to which paragraph 1 applies, the United
States Government, in accordance with United States law
regarding foreign claims, will pay just and reasonable
compensation in settlement of meritorious claims for damage,
loss, personal injury or death, caused by acts or omissions of
United States personnel, or otherwise incident to the non-
combat activities of the United States forces.
Article VII
Importation and Exportation
1. United States Government equipment, materials, supplies,
and other property imported into or acquired in the Philippines
by or on behalf of the United States armed forces in connection
with activities to which this agreement applies, shall be free of
all Philippine duties, taxes and other similar charges. Title to
such property shall remain with the United States, which may
remove such property from the Philippines at any time, free
from export duties, taxes, and other similar charges. The
exemptions provided in this paragraph shall also extend to any
duty, tax, or other similar charges which would otherwise be
assessed upon such property after importation into, or
acquisition within, the Philippines. Such property may be
removed from the Philippines, or disposed of therein, provided
that disposition of such property in the Philippines to persons
or entities not entitled to exemption from applicable taxes and
duties shall be subject to payment of such taxes, and duties
and prior approval of the Philippine Government.

2. Reasonable quantities of personal baggage, personal
effects, and other property for the personal use of United
States personnel may be imported into and used in the
Philippines free of all duties, taxes and other similar charges
during the period of their temporary stay in the Philippines.
Transfers to persons or entities in the Philippines not entitled
to import privileges may only be made upon prior approval of
the appropriate Philippine authorities including payment by
the recipient of applicable duties and taxes imposed in
accordance with the laws of the Philippines. The exportation
of such property and of property acquired in the Philippines by
United States personnel shall be free of all Philippine duties,
taxes, and other similar charges.
Article VIII
Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces
may enter the Philippines upon approval of the Government of
the Philippines in accordance with procedures stipulated in
implementing arrangements.
2. Vessels operated by or for the United States armed forces
may enter the Philippines upon approval of the Government of
the Philippines. The movement of vessels shall be in
accordance with international custom and practice governing
such vessels, and such agreed implementing arrangements as
necessary.
3. Vehicles, vessels, and aircraft operated by or for the United
States armed forces shall not be subject to the payment of
landing or port fees, navigation or over flight charges, or tolls
or other use charges, including light and harbor dues, while in
the Philippines. Aircraft operated by or for the United States
armed forces shall observe local air traffic control regulations
while in the Philippines. Vessels owned or operated by the
United States solely on United States Government non-
commercial service shall not be subject to compulsory pilotage
at Philippine ports.
Article IX
Duration and Termination
This agreement shall enter into force on the date on which the
parties have notified each other in writing through the
diplomatic channel that they have completed their
constitutional requirements for entry into force. This
agreement shall remain in force until the expiration of 180
days from the date on which either party gives the other party
notice in writing that it desires to terminate the agreement.
Via these consolidated[11] petitions for certiorari and
prohibition, petitioners - as legislators, non-governmental
organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute to herein respondents
grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the
following:
I
Do petitioners have legal standing as concerned citizens,
taxpayers, or legislators to question the constitutionality of the
VFA?
II
Is the VFA governed by the provisions of Section 21, Article
VII or of Section 25, Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine
sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear
and try offenses committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over
offenses punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the
Constitution?
b. the Prohibition against nuclear weapons under Article II,
Section 8?
c. Section 28 (4), Article VI of the Constitution granting the
exemption from taxes and duties for the equipment, materials
supplies and other properties imported into or acquired in the
Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to
sue, on the ground that the latter have not shown any interest
in the case, and that petitioners failed to substantiate that they
have sustained, or will sustain direct injury as a result of the
operation of the VFA.[12] Petitioners, on the other hand,
counter that the validity or invalidity of the VFA is a matter of
transcendental importance which justifies their standing.[13]
A party bringing a suit challenging the constitutionality of a
law, act, or statute must show not only that the law is invalid,
but also that he has sustained or in is in immediate, or
imminent danger of sustaining some direct injury as a result of
its enforcement, and not merely that he suffers thereby in
some indefinite way. He must show that he has been, or is
about to be, denied some right or privilege to which he is
lawfully entitled, or that he is about to be subjected to some
burdens or penalties by reason of the statute complained
of.[14]
In the case before us, petitioners failed to show, to the
satisfaction of this Court, that they have sustained, or are in
danger of sustaining any direct injury as a result of the
enforcement of the VFA. As taxpayers, petitioners have not
established that the VFA involves the exercise by Congress of
its taxing or spending powers.[15] On this point, it bears
stressing that a taxpayers suit refers to a case where the act
complained of directly involves the illegal disbursement of
public funds derived from taxation.[16] Thus, in Bugnay Const.
& Development Corp. vs. Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show
that he would be benefited or injured by the judgment or
entitled to the avails of the suit as a real party in interest.
Before he can invoke the power of judicial review, he must
specifically prove that he has sufficient interest in preventing
the illegal expenditure of money raised by taxation and that he
will sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has
merely a general interest common to all members of the
public.
Clearly, inasmuch as no public funds raised by taxation are
involved in this case, and in the absence of any allegation by
petitioners that public funds are being misspent or illegally
expended, petitioners, as taxpayers, have no legal standing to
assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino
and Joker Arroyo, as petitioners-legislators, do not possess the
requisite locus standi to maintain the present suit. While this
Court, in Phil. Constitution Association vs. Hon. Salvador
Enriquez,[18] sustained the legal standing of a member of the
Senate and the House of Representatives to question the
validity of a presidential veto or a condition imposed on an
item in an appropriation bull, we cannot, at this instance,
similarly uphold petitioners standing as members of Congress,
in the absence of a clear showing of any direct injury to their
person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative
power, such as the delegation of the power of Congress to
grant tax exemptions, are more apparent than real. While it
may be true that petitioners pointed to provisions of the VFA
which allegedly impair their legislative powers, petitioners
failed however to sufficiently show that they have in fact
suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines
(IBP) is stripped of standing in these cases. As aptly observed
by the Solicitor General, the IBP lacks the legal capacity to bring
this suit in the absence of a board resolution from its Board of
Governors authorizing its National President to commence the
present action.[19]
Notwithstanding, in view of the paramount importance and
the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion,
brushes aside the procedural barrier and takes cognizance of
the petitions, as we have done in the early Emergency Powers
Cases,[20] where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question
the constitutionality of several executive orders issued by
President Quirino although they were involving only an
indirect and general interest shared in common with the
public. The Court dismissed the objection that they were not
proper parties and ruled that transcendental importance to
the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must,
technicalities of procedure. We have since then applied the
exception in many other cases. (Association of Small
Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform,
175 SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of
Gonzales vs. COMELEC,[21] Daza vs. Singson,[22] and Basco vs.
Phil. Amusement and Gaming Corporation,[23] where we
emphatically held:
Considering however the importance to the public of the case
at bar, and in keeping with the Courts duty, under the 1987
Constitution, to determine whether or not the other branches
of the government have kept themselves within the limits of
the Constitution and the laws and that they have not abused
the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of this
petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona,
Jr.,[24] thisCourt ruled that in cases of transcendental
importance, the Court may relax the standing requirements
and allow a suit to prosper even where there is no direct injury
to the party claiming the right of judicial review.
Although courts generally avoid having to decide a
constitutional question based on the doctrine of separation of
powers, which enjoins upon the departments of the
government a becoming respect for each others acts,[25] this
Court nevertheless resolves to take cognizance of the instant
petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the
determination of which provision of the Constitution applies,
with regard to the exercise by the senate of its constitutional
power to concur with the VFA. Petitioners argue that Section
25, Article XVIII is applicable considering that the VFA has for
its subject the presence of foreign military troops in the
Philippines. Respondents, on the contrary, maintain that
Section 21, Article VII should apply inasmuch as the VFA is not
a basing arrangement but an agreement which involves
merely the temporary visits of United States personnel
engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions
requiring the concurrence of the Senate on treaties or
international agreements. Section 21, Article VII, which herein
respondents invoke, reads:
No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the
Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the senate and, when the Congress
so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
Section 21, Article VII deals with treatise or international
agreements in general, in which case, the concurrence of at
least two-thirds (2/3) of all the Members of the Senate is
required to make the subject treaty, or international
agreement, valid and binding on the part of the Philippines.
This provision lays down the general rule on treatise or
international agreements and applies to any form of treaty
with a wide variety of subject matter, such as, but not limited
to, extradition or tax treatise or those economic in nature. All
treaties or international agreements entered into by the
Philippines, regardless of subject matter, coverage, or
particular designation or appellation, requires the concurrence
of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that
applies to treaties which involve the presence of foreign
military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the
requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the
Philippines. Section 25, Article XVIII further requires that
foreign military bases, troops, or facilities may be allowed in
the Philippines only by virtue of a treaty duly concurred in by
the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress,
and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions,
far from contradicting each other, actually share some
common ground. These constitutional provisions both embody
phrases in the negative and thus, are deemed prohibitory in
mandate and character. In particular, Section 21 opens with
the clause No treaty x x x, and Section 25 contains the phrase
shall not be allowed. Additionally, in both instances, the
concurrence of the Senate is indispensable to render the treaty
or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to
the Senate under Section 21, Article VII, and that the Senate
extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21,
Article VII or Section 25, Article XVIII, the fundamental law is
crystalline that the concurrence of the Senate is mandatory to
comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the
treatment of United States troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits
of military personnel, and further defines the rights of the
United States and the Philippine government in the matter of
criminal jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials and
supplies.
Undoubtedly, Section 25, Article XVIII, which specifically
deals with treaties involving foreign military bases, troops, or
facilities, should apply in the instant case. To a certain extent
and in a limited sense, however, the provisions of section 21,
Article VII will find applicability with regard to the issue and
for the sole purpose of determining the number of votes
required to obtain the valid concurrence of the Senate, as will
be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that
a special provision or law prevails over a general one. Lex
specialis derogat generali. Thus, where there is in the same
statute a particular enactment and also a general one which,
in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be
operative, and the general enactment must be taken to affect
only such cases within its general language which are not
within the provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we
enunciated:
x x x that another basic principle of statutory construction
mandates that general legislation must give way to a special
legislation on the same subject, and generally be so
interpreted as to embrace only cases in which the special
provisions are not applicable (Sto. Domingo vs. de los Angeles,
96 SCRA 139), that a specific statute prevails over a general
statute (De Jesus vs. People, 120 SCRA 760) and that where
two statutes are of equal theoretical application to a particular
case, the one designed therefor specially should prevail (Wil
Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII
is inapplicable to mere transient agreements for the reason
that there is no permanent placing of structure for the
establishment of a military base. On this score, the
Constitution makes no distinction between transient and
permanent. Certainly, we find nothing in Section 25, Article
XVIII that requires foreign troops or facilities to be stationed
or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction
is made by law, the Court should not distinguish- Ubi lex non
distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that
Section 25, Article XVIII is not controlling since no foreign
military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional
provision reveals that the proscription covers foreign military
bases, troops, or facilities. Stated differently, this prohibition is
not limited to the entry of troops and facilities without any
foreign bases being established. The clause does not refer to
foreign military bases, troops, or facilities collectively but
treats them as separate and independent subjects. The use of
comma and the disjunctive word or clearly signifies
disassociation and independence of one thing from the others
included in the enumeration,[28] such that, the provision
contemplates three different situations - a military treaty the
subject of which could be either (a) foreign bases, (b) foreign
troops, or (c) foreign facilities - any of the three standing alone
places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as
manifested during the deliberations of the 1986 Constitutional
Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to
Commissioner Bernas.
This formulation speaks of three things: foreign military bases,
troops or facilities. My first question is: If the country does
enter into such kind of a treaty, must it cover the three-bases,
troops or facilities-or could the treaty entered into cover only
one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers
only one or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government
can enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the
government can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination
a little bit more, we will find some. We just want to cover
everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of
another state is no longer viable because of the alternatives
offered by new means and weapons of warfare such as nuclear
weapons, guided missiles as well as huge sea vessels that can
stay afloat in the sea even for months and years without
returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of
military aircraft but also of military personnel and facilities.
Besides, vessels are mobile as compared to a land-based
military headquarters.
At this juncture, we shall then resolve the issue of whether or
not the requirements of Section 25 were complied with when
the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases,
troops, or facilities in the country, unless the following
conditions are sufficiently met, viz: (a) it must be under a
treaty; (b) the treaty must be duly concurred in by the Senate
and, when so required by congress, ratified by a majority of the
votes cast by the people in a national referendum; and (c)
recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two
requisites in the case of the VFA. The concurrence handed by
the Senate through Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under the general
requirement in Section 21, Article VII, or the specific mandate
mentioned in Section 25, Article XVIII, the provision in the
latter article requiring ratification by a majority of the votes
cast in a national referendum being unnecessary since
Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly
requires that a treaty or international agreement, to be valid
and effective, must be concurred in by at least two-thirds of all
the members of the Senate. On the other hand, Section 25,
Article XVIII simply provides that the treaty be duly concurred
in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds
vote of all the members of the Senate is clearly required so that
the concurrence contemplated by law may be validly obtained
and deemed present. While it is true that Section 25, Article
XVIII requires, among other things, that the treaty-the VFA, in
the instant case-be duly concurred in by the Senate, it is very
true however that said provision must be related and viewed
in light of the clear mandate embodied in Section 21, Article
VII, which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be made
by a two -thirds vote of all the members of the Senate. Indeed,
Section 25, Article XVIII must not be treated in isolation to
section 21, Article, VII.
As noted, the concurrence requirement under Section 25,
Article XVIII must be construed in relation to the provisions of
Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25,
Article XVIII means that at least two-thirds of all the members
of the Senate favorably vote to concur with the treaty-the VFA
in the instant case.
Under these circumstances, the charter provides that the
Senate shall be composed of twenty-four (24) Senators.[30]
Without a tinge of doubt, two-thirds (2/3) of this figure, or not
less than sixteen (16) members, favorably acting on the
proposal is an unquestionable compliance with the requisite
number of votes mentioned in Section 21 of Article VII. The fact
that there were actually twenty-three (23) incumbent Senators
at the time the voting was made,[31] will not alter in any
significant way the circumstance that more than two-thirds of
the members of the Senate concurred with the proposed VFA,
even if the two-thirds vote requirement is based on this figure
of actual members (23). In this regard, the fundamental law is
clear that two-thirds of the 24 Senators, or at least 16
favorable votes, suffice so as to render compliance with the
strict constitutional mandate of giving concurrence to the
subject treaty.
Having resolved that the first two requisites prescribed in
Section 25, Article XVIII are present, we shall now pass upon
and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty,
embodied in section 25, Article XVIII, means that the VFA
should have the advice and consent of the United States
Senate pursuant to its own constitutional process, and that it
should not be considered merely an executive agreement by
the United States.
In opposition, respondents argue that the letter of United
States Ambassador Hubbard stating that the VFA is binding
on the United States Government is conclusive, on the point
that the VFA is recognized as a treaty by the United States of
America. According to respondents, the VFA, to be binding,
must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a
treaty means that the other contracting party accepts or
acknowledges the agreement as a treaty.[32] To require the
other contracting state, the United States of America in this
case, to submit the VFA to the United States Senate for
concurrence pursuant to its Constitution,[33] is to accord strict
meaning to the phrase.
Well-entrenched is the principle that the words used in the
Constitution are to be given their ordinary meaning except
where technical terms are employed, in which case the
significance thus attached to them prevails. Its language
should be understood in the sense they have in common
use.[34]
Moreover, it is inconsequential whether the United States
treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a
treaty.[35] To be sure, as long as the VFA possesses the
elements of an agreement under international law, the said
agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of
Treaties, is an international instrument concluded between
States in written form and governed by international law,
whether embodied in a single instrument or in two or more
related instruments, and whatever its particular
designation.[36] There are many other terms used for a treaty
or international agreement, some of which are: act, protocol,
agreement, compromis d arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter and
modus vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international
agreements included under the general term treaty have little
or no legal significance. Certain terms are useful, but they
furnish little more than mere description.[37]
Article 2(2) of the Vienna Convention provides that the
provisions of paragraph 1 regarding the use of terms in the
present Convention are without prejudice to the use of those
terms, or to the meanings which may be given to them in the
internal law of the State.
Thus, in international law, there is no difference between
treaties and executive agreements in their binding effect
upon states concerned, as long as the negotiating
functionaries have remained within their powers.[38]
International law continues to make no distinction between
treaties and executive agreements: they are equally binding
obligations upon nations.[39]
In our jurisdiction, we have recognized the binding effect of
executive agreements even without the concurrence of the
Senate or Congress. In Commissioner of Customs vs. Eastern
Sea Trading,[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements
without the necessity of subsequent congressional approval
has been confirmed by long usage. From the earliest days of
our history we have entered into executive agreements
covering such subjects as commercial and consular relations,
most-favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and
the settlement of claims. The validity of these has never been
seriously questioned by our courts.
xxxxxxxxx
Furthermore, the United States Supreme Court has expressly
recognized the validity and constitutionality of executive
agreements entered into without Senate approval. (39
Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis
Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs.
Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S.
203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law
Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25,
pp. 670-675; Hyde on International Law [revised Edition], Vol.
2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution
Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law
Digest, Vol. V, pp. 210-218; Hackworth, International Law
Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which
drafted the 1987 Constitution is enlightening and highly-
instructive:
MR. MAAMBONG. Of course it goes without saying that as far
as ratification of the other state is concerned, that is entirely
their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they
say that we have done everything to make it a treaty, then as
far as we are concerned, we will accept it as a treaty.[41]
The records reveal that the United States Government,
through Ambassador Thomas C. Hubbard, has stated that the
United States government has fully committed to living up to
the terms of the VFA.[42] For as long as the united States of
America accepts or acknowledges the VFA as a treaty, and
binds itself further to comply with its obligations under the
treaty, there is indeed marked compliance with the mandate
of the Constitution.
Worth stressing too, is that the ratification, by the President,
of the VFA and the concurrence of the Senate should be taken
as a clear an unequivocal expression of our nations consent to
be bound by said treaty, with the concomitant duty to uphold
the obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act,
undertaken by the head of the state or of the government, as
the case may be, through which the formal acceptance of the
treaty is proclaimed.[43] A State may provide in its domestic
legislation the process of ratification of a treaty. The consent
of the State to be bound by a treaty is expressed by ratification
when: (a) the treaty provides for such ratification, (b) it is
otherwise established that the negotiating States agreed that
ratification should be required, (c) the representative of the
State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification
appears from the full powers of its representative, or was
expressed during the negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President
and not, as commonly believed, in the legislature. The role of
the Senate is limited only to giving or withholding its consent,
or concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final
acceptance, and with the exchange of notes between the
Philippines and the United States of America, it now becomes
obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement.
Thus, no less than Section 2, Article II of the Constitution,[46]
declares that the Philippines adopts the generally accepted
principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to
be bound by generally accepted rules for the conduct of its
international relations. While the international obligation
devolves upon the state and not upon any particular branch,
institution, or individual member of its government, the
Philippines is nonetheless responsible for violations
committed by any branch or subdivision of its government or
any official thereof. As an integral part of the community of
nations, we are responsible to assure that our government,
Constitution and laws will carry out our international
obligation.[47] Hence, we cannot readily plead the
Constitution as a convenient excuse for non-compliance with
our obligations, duties and responsibilities under international
law.
Beyond this, Article 13 of the Declaration of Rights and Duties
of States adopted by the International Law Commission in
1949 provides: Every State has the duty to carry out in good
faith its obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this
duty.[48]
Equally important is Article 26 of the convention which
provides that Every treaty in force is binding upon the parties
to it and must be performed by them in good faith. This is
known as the principle of pacta sunt servanda which preserves
the sanctity of treaties and have been one of the most
fundamental principles of positive international law,
supported by the jurisprudence of international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily
faulted for exercising a power and performing a task conferred
upon him by the Constitution-the power to enter into and
ratify treaties. Through the expediency of Rule 65 of the Rules
of Court, petitioners in these consolidated cases impute grave
abuse of discretion on the part of the chief Executive in
ratifying the VFA, and referring the same to the Senate
pursuant to the provisions of Section 21, Article VII of the
Constitution.
On this particular matter, grave abuse of discretion implies
such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, when the power is
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and it must be so patent and
gross as to amount to an evasion of positive duty enjoined or
to act at all in contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office,
the President, as head of State, is the sole organ and authority
in the external affairs of the country. In many ways, the
President is the chief architect of the nations foreign policy; his
dominance in the field of foreign relations is (then)
conceded.[51] Wielding vast powers an influence, his conduct
in the external affairs of the nation, as Jefferson describes, is
executive altogether."[52]
As regards the power to enter into treaties or international
agreements, the Constitution vests the same in the President,
subject only to the concurrence of at least two-thirds vote of
all the members of the Senate. In this light, the negotiation of
the VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the
lawful exercise of his vast executive and diplomatic powers
granted him no less than by the fundamental law itself. Into
the field of negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it.[53] Consequently, the
acts or judgment calls of the President involving the VFA-
specifically the acts of ratification and entering into a treaty
and those necessary or incidental to the exercise of such
principal acts - squarely fall within the sphere of his
constitutional powers and thus, may not be validly struck
down, much less calibrated by this Court, in the absence of
clear showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying
the VFA and in submitting the same to the Senate for
concurrence, acted within the confines and limits of the
powers vested in him by the Constitution. It is of no moment
that the President, in the exercise of his wide latitude of
discretion and in the honest belief that the VFA falls within the
ambit of Section 21, Article VII of the Constitution, referred the
VFA to the Senate for concurrence under the aforementioned
provision. Certainly, no abuse of discretion, much less a grave,
patent and whimsical abuse of judgment, may be imputed to
the President in his act of ratifying the VFA and referring the
same to the Senate for the purpose of complying with the
concurrence requirement embodied in the fundamental law.
In doing so, the President merely performed a constitutional
task and exercised a prerogative that chiefly pertains to the
functions of his office. Even if he erred in submitting the VFA
to the Senate for concurrence under the provisions of Section
21 of Article VII, instead of Section 25 of Article XVIII of the
Constitution, still, the President may not be faulted or scarred,
much less be adjudged guilty of committing an abuse of
discretion in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the
Constitution has broadened the scope of judicial inquiry into
areas normally left to the political departments to decide, such
as those relating to national security, it has not altogether
done away with political questions such as those which arise in
the field of foreign relations.[54] The High Tribunals function,
as sanctioned by Article VIII, Section 1, is merely (to) check
whether or not the governmental branch or agency has gone
beyond the constitutional limits of its jurisdiction, not that it
erred or has a different view. In the absence of a showing (of)
grave abuse of discretion amounting to lack of jurisdiction,
there is no occasion for the Court to exercise its corrective
powerIt has no power to look into what it thinks is apparent
error.[55]
As to the power to concur with treaties, the constitution lodges
the same with the Senate alone. Thus, once the Senate[56]
performs that power, or exercises its prerogative within the
boundaries prescribed by the Constitution, the concurrence
cannot, in like manner, be viewed to constitute an abuse of
power, much less grave abuse thereof. Corollarily, the Senate,
in the exercise of its discretion and acting within the limits of
such power, may not be similarly faulted for having simply
performed a task conferred and sanctioned by no less than the
fundamental law.
For the role of the Senate in relation to treaties is essentially
legislative in character;[57] the Senate, as an independent
body possessed of its own erudite mind, has the prerogative to
either accept or reject the proposed agreement, and whatever
action it takes in the exercise of its wide latitude of discretion,
pertains to the wisdom rather than the legality of the act. In
this sense, the Senate partakes a principal, yet delicate, role in
keeping the principles of separation of powers and of checks
and balances alive and vigilantly ensures that these cherished
rudiments remain true to their form in a democratic
government such as ours. The Constitution thus animates,
through this treaty-concurring power of the Senate, a healthy
system of checks and balances indispensable toward our
nations pursuit of political maturity and growth. True enough,
rudimentary is the principle that matters pertaining to the
wisdom of a legislative act are beyond the ambit and province
of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion
on the part of respondents, this Court- as the final arbiter of
legal controversies and staunch sentinel of the rights of the
people - is then without power to conduct an incursion and
meddle with such affairs purely executive and legislative in
character and nature. For the Constitution no less, maps out
the distinct boundaries and limits the metes and bounds within
which each of the three political branches of government may
exercise the powers exclusively and essentially conferred to it
by law.
WHEREFORE, in light of the foregoing disquisitions, the instant
petitions are hereby DISMISSED.
SO ORDERED.
January 12, 2016
G.R. No. 212426
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO
"DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN,
PACIFICO A. AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L.
ROQUE, JR., EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL
PAGADUAN-ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY
CASIÑO, Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT
OF NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T.
BAUTISTA, Respondents.
x-----------------------x
G.R. No. 212444
BAGONG ALYANSANG MAKABAYAN (BAYAN), REPRESENTED
BY ITS SECRETARY GENERAL RENATO M. REYES, JR., BAYAN
MUNA PARTY-LIST REPRESENTATIVES NERI J. COLMENARES
AND CARLOS ZARATE, GABRIELA WOMEN'S PARTY-LIST
REPRESENTATIVES LUZ ILAGAN AND EMERENCIANA DE JESUS,
ACT TEACHERS PARTY-LIST REPRESENTATIVE ANTONIO L.
TINIO, ANAKPAWIS PARTY-LIST REPRESENTATIVE FERNANDO
HICAP, KABATAAN PARTY-LIST REPRESENTATIVE TERRY RIDON,
MAKABAYANG KOALISYON NG MAMAMAYAN (MAKABAYAN),
REPRESENTED BY SATURNINO OCAMPO AND LIZA MAZA,
BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL
MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA, AND
CLEMENTE G. BAUTISTA, Petitioners,
vs.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY
VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES
CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR
LOURDES YPARRAGUIRRE, AMBASSADOR J. EDUARDO
MALAYA, DEPARTMENT OF JUSTICE UNDERSECRETARY
FRANCISCO BARAAN III, AND DND ASSISTANT SECRETARY FOR
STRATEGIC ASSESSMENTS RAYMUND JOSE QUILOP AS
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA,
Respondents.
x-----------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON,
ELMER LABOG, CONFEDERATION FOR UNITY, RECOGNITION
AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE), REPRESENTED BY ITS NATIONAL PRESIDENT
FERDINAND GAITE, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO, REPRESENTED BY ITS
NATIONAL PRESIDENT JOSELITO USTAREZ, NENITA GONZAGA,
VIOLETA ESPIRITU, VIRGINIA FLORES, AND ARMANDO
TEODORO, JR., Petitioners-in-Intervention,
RENE A.Q. SAGUISAG, JR., Petitioner-in-Intervention.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality
of the Enhanced Defense Cooperation Agreement (EDCA)
between the Republic of the Philippines and the United States
of America (U.S.). Petitioners allege that respondents
committed grave abuse of discretion amounting to lack or
excess of jurisdiction when they entered into EDCA with the
U.S.,2 claiming that the instrument violated multiple
constitutional provisions.3 In reply, respondents argue that
petitioners lack standing to bring the suit. To support the
legality of their actions, respondents invoke the 1987
Constitution, treaties, and judicial precedents.4
A proper analysis of the issues requires this Court to lay down
at the outset the basic parameters of the constitutional powers
and roles of the President and the Senate in respect of the
above issues. A more detailed discussion of these powers and
roles will be made in the latter portions.
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.
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
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,201 the 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.216 Because
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
a. Admission of U.S. military and civilian personnel into
Philippine territory is already allowed under the VFA
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.
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.
RAMON A. GONZALES, petitioner,
vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO
PERALTA, JR., as Secretary of Defense, PEDRO GIMENEZ, as
Auditor General, CORNELIO BALMACEDA, as Secretary of
Commerce and Industry, and SALVADOR MARINO, Secretary
of Justice, respondents.
Ramon A. Gonzales in his own behalf as petitioner.
Office of the Solicitor General and Estanislao Fernandez for
respondents.
CONCEPCION, J.:
This is an original action for prohibition with preliminary
injunction.
It is not disputed that on September 22, 1963, respondent
Executive Secretary authorized the importation of 67,000 tons
of foreign rice to be purchased from private sources, and
created a rice procurement committee composed of the other
respondents herein1 for the implementation of said proposed
importation. Thereupon, or September 25, 1963, herein
petitioner, Ramon A. Gonzales — a rice planter, and president
of the Iloilo Palay and Corn Planters Association, whose
members are, likewise, engaged in the production of rice and
corn — filed the petition herein, averring that, in making or
attempting to make said importation of foreign rice, the
aforementioned respondents "are acting without jurisdiction
or in excess of jurisdiction", because Republic Act No. 3452
which allegedly repeals or amends Republic Act No. 220 —
explicitly prohibits the importation of rice and corn "the Rice
and Corn Administration or any other government agency;"
that petitioner has no other plain, speedy and adequate
remedy in the ordinary course of law; and that a preliminary
injunction is necessary for the preservation of the rights of the
parties during the pendency this case and to prevent the
judgment therein from coming ineffectual. Petitioner prayed,
therefore, that said petition be given due course; that a writ of
preliminary injunction be forthwith issued restraining
respondent their agents or representatives from implementing
the decision of the Executive Secretary to import the
aforementioned foreign rice; and that, after due hearing,
judgment be rendered making said injunction permanent.
Forthwith, respondents were required to file their answer to
the petition which they did, and petitioner's pray for a writ of
preliminary injunction was set for hearing at which both
parties appeared and argued orally. Moreover, a
memorandum was filed, shortly thereafter, by the
respondents. Considering, later on, that the resolution said
incident may require some pronouncements that would be
more appropriate in a decision on the merits of the case, the
same was set for hearing on the merits thereafter. The parties,
however, waived the right to argue orally, although counsel for
respondents filed their memoranda.
I. Sufficiency of petitioner's interest.
Respondents maintain that the status of petitioner as a rice
planter does not give him sufficient interest to file the petition
herein and secure the relief therein prayed for. We find no
merit in this pretense. Apart from prohibiting the importation
of rice and corn "by the Rice and Corn Administration or any
other government agency". Republic Act No. 3452 declares, in
Section 1 thereof, that "the policy of the Government" is to
"engage in the purchase of these basic foods directly from
those tenants, farmers, growers, producers and landowners in
the Philippines who wish to dispose of their products at a price
that will afford them a fair and just return for their labor and
capital investment. ... ." Pursuant to this provision, petitioner,
as a planter with a rice land of substantial proportion,2 is
entitled to a chance to sell to the Government the rice it now
seeks to buy abroad. Moreover, since the purchase of said
commodity will have to be effected with public funds mainly
raised by taxation, and as a rice producer and landowner
petitioner must necessarily be a taxpayer, it follows that he has
sufficient personality and interest to seek judicial assistance
with a view to restraining what he believes to be an attempt to
unlawfully disburse said funds.
II. Exhaustion of administrative remedies.
Respondents assail petitioner's right to the reliefs prayed for
because he "has not exhausted all administrative remedies
available to him before coming to court". We have already
held, however, that the principle requiring the previous
exhaustion of administrative remedies is not applicable where
the question in dispute is purely a legal one",3 or where the
controverted act is "patently illegal" or was performed without
jurisdiction or in excess of jurisdiction,4 or where the
respondent is a department secretary, whose acts as an alter-
ego of the President bear the implied or assumed approval of
the latter,5 unless actually disapproved by him,6 or where
there are circumstances indicating the urgency of judicial
intervention.7 The case at bar fails under each one of the
foregoing exceptions to the general rule. Respondents'
contention is, therefore, untenable.
III. Merits of petitioner's cause of action.
Respondents question the sufficiency of petitioner's cause of
action upon the theory that the proposed importation in
question is not governed by Republic Acts Nos. 2207 and 3452,
but was authorized by the President as Commander-in-Chief
"for military stock pile purposes" in the exercise of his alleged
authority under Section 2 of Commonwealth Act No. 1;8 that
in cases of necessity, the President "or his subordinates may
take such preventive measure for the restoration of good
order and maintenance of peace"; and that, as Commander-in-
Chief of our armed forces, "the President ... is duty-bound to
prepare for the challenge of threats of war or emergency
without waiting for any special authority".
Regardless of whether Republic Act No. 3452 repeals Republic
Act No. 2207, as contended by petitioner herein - on which our
view need not be expressed — we are unanimously of the
opinion - assuming that said Republic Act No. 2207 is still in
force — that the two Acts are applicable to the proposed
importation in question because the language of said laws is
such as to include within the purview thereof all importations
of rice and corn into the Philippines". Pursuant to Republic Act
No. 2207, "it shall be unlawful for any person, association,
corporation or government agency to import rice and corn
into any point in the Philippines", although, by way of
exception, it adds, that "the President of the Philippines may
authorize the importation of these commodities through any
government agency that he may designate", is the conditions
prescribed in Section 2 of said Act are present. Similarly,
Republic Act No. 3452 explicitly enjoins "the Rice and Corn
Administration or any government agency" from importing
rice and corn.
Respondents allege, however, that said provisions of Republic
Act Nos. 2207 and 3452, prohibiting the importation of rice
and corn by any "government agency", do not apply to
importations "made by the Government itself", because the
latter is not a "government agency". This theory is devoid of
merit. The Department of National Defense and the Armed
Forces of the Philippines, as well as respondents herein, and
each and every officer and employee of our Government, our
government agencies and/or agents. The applicability of said
laws even to importations by the Government as such,
becomes more apparent when we consider that:
1. The importation permitted in Republic Act No. 2207
is to be authorized by the "President of the Philippines" and,
hence, by or on behalf of the Government of the Philippines;
2. Immediately after enjoining the Rice and Corn
administration and any other government agency from
importing rice and corn, Section 10 of Republic Act No. 3452
adds "that the importation of rice and corn is left to private
parties upon payment of the corresponding taxes", thus
indicating that only "private parties" may import rice under
its provisions; and
3. Aside from prescribing a fine not exceeding
P10,000.00 and imprisonment of not more than five (5) years
for those who shall violate any provision of Republic Act No.
3452 or any rule and regulation promulgated pursuant
thereto, Section 15 of said Act provides that "if the offender is
a public official and/or employees", he shall be subject to the
additional penalty specified therein. A public official is an
officer of the Government itself, as distinguished from officers
or employees of instrumentalities of the Government. Hence,
the duly authorized acts of the former are those of the
Government, unlike those of a government instrumentality
which may have a personality of its own, distinct and separate
from that of the Government, as such. The provisions of
Republic Act No. 2207 are, in this respect, even more explicit.
Section 3 thereof provides a similar additional penalty for any
"officer or employee of the Government" who "violates, abets
or tolerates the violation of any provision" of said Act. Hence,
the intent to apply the same to transactions made by the very
government is patent.
Indeed, the restrictions imposed in said Republic Acts are
merely additional to those prescribed in Commonwealth Act
No. 138, entitled "An Act to give native products and domestic
entities the preference in the purchase of articles for the
Government." Pursuant to Section 1 thereof:
The Purchase and Equipment Division of the Government of
the Philippines and other officers and employees of the
municipal and provincial governments and the Government of
the Philippines and of chartered cities, boards, commissions,
bureaus, departments, offices, agencies, branches, and bodies
of any description, including government-owned companies,
authorized to requisition, purchase, or contract or make
disbursements for articles, materials, and supplies for public
use, public buildings, or public works shall give preference to
materials ... produced ... in the Philippines or in the United
States, and to domestic entities, subject to the conditions
hereinbelow specified. (Emphasis supplied.)
Under this provision, in all purchases by the Government,
including those made by and/or for the armed forces,
preference shall be given to materials produced in the
Philippines. The importation involved in the case at bar violates
this general policy of our Government, aside from the
provisions of Republic Acts Nos. 2207 and 3452.
The attempt to justify the proposed importation by invoking
reasons of national security — predicated upon the
"worsening situation in Laos and Vietnam", and "the recent
tension created by the Malaysia problem" - and the alleged
powers of the President as Commander-in-Chief of all armed
forces in the Philippines, under Section 2 of the National
Defense Act (Commonwealth Act No. 1), overlooks the fact
that the protection of local planters of rice and corn in a
manner that would foster and accelerate self-sufficiency in the
local production of said commodities constitutes a factor that
is vital to our ability to meet possible national emergency. Even
if the intent in importing goods in anticipation of such
emergency were to bolster up that ability, the latter would,
instead, be impaired if the importation were so made as to
discourage our farmers from engaging in the production of
rice.
Besides, the stockpiling of rice and corn for purpose of national
security and/or national emergency is within the purview of
Republic Act No. 3452. Section 3 thereof expressly authorizes
the Rice and Corn Administration "to accumulate stocks as a
national reserve in such quantities as it may deem proper and
necessary to meet any contingencies". Moreover, it ordains
that "the buffer stocks held as a national reserve ... be
deposited by the administration throughout the country under
the proper dispersal plans ... and may be released only upon
the occurrence of calamities or emergencies ...". (Emphasis
applied.)
Again, the provisions of Section 2 of Commonwealth Act No. 1,
upon which respondents rely so much, are not self-executory.
They merely outline the general objectives of said legislation.
The means for the attainment of those objectives are subject
to congressional legislation. Thus, the conditions under which
the services of citizens, as indicated in said Section 2, may be
availed of, are provided for in Sections 3, 4 and 51 to 88 of said
Commonwealth Act No. 1. Similarly, Section 5 thereof specifies
the manner in which resources necessary for our national
defense may be secured by the Government of the Philippines,
but only "during a national mobilization",9 which does not
exist. Inferentially, therefore, in the absence of a national
mobilization, said resources shall be produced in such manner
as Congress may by other laws provide from time to time.
Insofar as rice and corn are concerned, Republic Acts Nos. 2207
and 3452, and Commonwealth Act No. 138 are such laws.
Respondents cite Corwin in support of their pretense, but in
vain. An examination of the work cited10 shows that Corwin
referred to the powers of the President during "war time"11
or when he has placed the country or a part thereof under
"martial law".12 Since neither condition obtains in the case at
bar, said work merely proves that respondents' theory, if
accepted, would, in effect, place the Philippines under martial
law, without a declaration of the Executive to that effect. What
is worse, it would keep us perpetually under martial law.
It has been suggested that even if the proposed importation
violated Republic Acts Nos. 2207 and 3452, it should,
nevertheless, be permitted because "it redounds to the benefit
of the people". Salus populi est suprema lex, it is said.
If there were a local shortage of rice, the argument might have
some value. But the respondents, as officials of this
Government, have expressly affirmed again and again that
there is no rice shortage. And the importation is avowedly for
stockpile of the Army — not the civilian population.
But let us follow the respondents' trend of thought. It has a
more serious implication that appears on the surface. It implies
that if an executive officer believes that compliance with a
certain statute will not benefit the people, he is at liberty to
disregard it. That idea must be rejected - we still live under a
rule of law.
And then, "the people" are either producers or consumers.
Now — as respondents explicitly admit — Republic Acts Nos.
2207 and 3452 were approved by the Legislature for the
benefit of producers and consumers, i.e., the people, it must
follow that the welfare of the people lies precisely in the
compliance with said Acts.
It is not for respondent executive officers now to set their own
opinions against that of the Legislature, and adopt means or
ways to set those Acts at naught. Anyway, those laws permit
importation — but under certain conditions, which have not
been, and should be complied with.
IV. The contracts with Vietnam and Burma —
It is lastly contended that the Government of the Philippines
has already entered into two (2) contracts for the Purchase of
rice, one with the Republic of Vietnam, and another with the
Government of Burma; that these contracts constitute valid
executive agreements under international law; that such
agreements became binding effective upon the signing
thereof by representatives the parties thereto; that in case of
conflict between Republic Acts Nos. 2207 and 3452 on the
one hand, and aforementioned contracts, on the other, the
latter should prevail, because, if a treaty and a statute are
inconsistent with each other, the conflict must be resolved —
under the American jurisprudence — in favor of the one
which is latest in point of time; that petitioner herein assails
the validity of acts of the Executive relative to foreign
relations in the conduct of which the Supreme Court cannot
interfere; and the aforementioned contracts have already
been consummated, the Government of the Philippines
having already paid the price of the rice involved therein
through irrevocable letters of credit in favor of the sell of the
said commodity. We find no merit in this pretense.
The Court is not satisfied that the status of said tracts as
alleged executive agreements has been sufficiently
established. The parties to said contracts do not pear to have
regarded the same as executive agreements. But, even
assuming that said contracts may properly considered as
executive agreements, the same are unlawful, as well as null
and void, from a constitutional viewpoint, said agreements
being inconsistent with the provisions of Republic Acts Nos.
2207 and 3452. Although the President may, under the
American constitutional system enter into executive
agreements without previous legislative authority, he may
not, by executive agreement, enter into a transaction which
is prohibited by statutes enacted prior thereto. Under the
Constitution, the main function of the Executive is to enforce
laws enacted by Congress. The former may not interfere in
the performance of the legislative powers of the latter,
except in the exercise of his veto power. He may not defeat
legislative enactments that have acquired the status of law,
by indirectly repealing the same through an executive
agreement providing for the performance of the very act
prohibited by said laws.
The American theory to the effect that, in the event of
conflict between a treaty and a statute, the one which is
latest in point of time shall prevail, is not applicable to the
case at bar, for respondents not only admit, but, also insist
that the contracts adverted to are not treaties. Said theory
may be justified upon the ground that treaties to which the
United States is signatory require the advice and consent of
its Senate, and, hence, of a branch of the legislative
department. No such justification can be given as regards
executive agreements not authorized by previous legislation,
without completely upsetting the principle of separation of
powers and the system of checks and balances which are
fundamental in our constitutional set up and that of the
United States.
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 — (1) 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 alleged consummation of the aforementioned contracts
with Vietnam and Burma does not render this case academic,
Republic Act No. 2207 enjoins our Government not from
entering into contracts for the purchase of rice, but from
importing rice, except under the conditions Prescribed in said
Act. Upon the other hand, Republic Act No. 3452 has two (2)
main features, namely: (a) it requires the Government to
purchase rice and corn directly from our local planters,
growers or landowners; and (b) it prohibits importations of
rice by the Government, and leaves such importations to
private parties. The pivotal issue in this case is whether the
proposed importation — which has not been consummated
as yet — is legally feasible.
Lastly, a judicial declaration of illegality of the proposed
importation would not compel our Government to default in
the performance of such obligations as it may have
contracted with the sellers of the rice in question, because,
aside from the fact that said obligations may be complied
with without importing the commodity into the Philippines,
the proposed importation may still be legalized by complying
with the provisions of the aforementioned laws.
V. The writ of preliminary injunction.
The members of the Court have divergent opinions on the
question whether or not respondents herein should be
enjoined from implementing the aforementioned proposed
importation. However, the majority favors the negative view,
for which reason the injunction prayed for cannot be granted.
WHEREFORE, judgment is hereby rendered declaring that
respondent Executive Secretary had and has no power to
authorize the importation in question; that he exceeded his
jurisdiction in granting said authority; said importation is not
sanctioned by law and is contrary to its provisions; and that,
for lack of the requisite majority, the injunction prayed for
must be and is, accordingly denied. It is so ordered.
Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and
Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION
(ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila,
respondent.
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for
petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
This Court, in this case of first impression, at least as to some
aspects, is called upon to delineate the boundaries of the
protected area of the cognate rights to free speech and
peaceable assembly, 1 against an alleged intrusion by
respondent Mayor Ramon Bagatsing. Petitioner, retired Justice
JB L. Reyes, on behalf of the Anti-Bases Coalition sought a
permit from the City of Manila to hold a peaceful march and
rally on October 26, 1983 from 2:00 to 5:00 in the afternoon,
starting from the Luneta, a public park, to the gates of the
United States Embassy, hardly two blocks away. Once there,
and in an open space of public property, a short program
would be held. 2 During the course of the oral argument, 3 it
was stated that after the delivery of two brief speeches, a
petition based on the resolution adopted on the last day by the
International Conference for General Disbarmament, World
Peace and the Removal of All Foreign Military Bases held in
Manila, would be presented to a representative of the
Embassy or any of its personnel who may be there so that it
may be delivered to the United States Ambassador. The march
would be attended by the local and foreign participants of such
conference. There was likewise an assurance in the petition
that in the exercise of the constitutional rights to free speech
and assembly, all the necessary steps would be taken by it "to
ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for
writ of preliminary mandatory injunction on October 20, 1983
was due to the fact that as of that date, petitioner had not
been informed of any action taken on his request on behalf of
the organization to hold a rally. On October 25, 1983, the
answer of respondent Mayor was filed on his behalf by
Assistant Solicitor General Eduardo G. Montenegro. 5 It turned
out that on October 19, such permit was denied. Petitioner
was unaware of such a fact as the denial was sent by ordinary
mail. The reason for refusing a permit was due to police
intelligence reports which strongly militate against the
advisability of issuing such permit at this time and at the place
applied for." 6 To be more specific, reference was made to
persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any
assembly or congregations where a large number of people is
expected to attend." 7 Respondent Mayor suggested,
however, in accordance with the recommendation of the
police authorities, that "a permit may be issued for the rally if
it is to be held at the Rizal Coliseum or any other enclosed area
where the safety of the participants themselves and the
general public may be ensured." 8
The oral argument was heard on October 25, 1983, the very
same day the answer was filed. The Court then deliberated on
the matter. That same afternoon, a minute resolution was
issued by the Court granting the mandatory injunction prayed
for on the ground that there was no showing of the existence
of a clear and present danger of a substantive evil that could
justify the denial of a permit. On this point, the Court was
unanimous, but there was a dissent by Justice Aquino on the
ground that the holding of a rally in front of the US Embassy
would be violative of Ordinance No. 7295 of the City of Manila.
The last sentence of such minute resolution reads: "This
resolution is without prejudice to a more extended opinion." 9
Hence this detailed exposition of the Court's stand on the
matter.
1. It is thus clear that the Court is called upon to protect
the exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit. The Constitution
is quite explicit: "No law shall be passed abridging the freedom
of speech, or of the press, or the right of the people peaceably
to assemble and petition the Government for redress of
grievances." 10 Free speech, like free press, may be Identified
with the liberty to discuss publicly and truthfully any matter of
public concern without censorship or punishment. 11 There is
to be then no previous restraint on the communication of
views or subsequent liability whether in libel suits, 12
prosecution for sedition, 13 or action for damages, 14 or
contempt proceedings 15 unless there be a clear and present
danger of a substantive evil that [the State] has a right to
prevent." 16 Freedom of assembly connotes the right people
to meet peaceably for consultation and discussion of matters
Of public concern.17 It is entitled to be accorded the utmost
deference and respect. It is hot to be limited, much less denied,
except on a showing, as 's the case with freedom of expression,
of a clear and present danger of a substantive evil that the
state has a right to prevent. 18 Even prior to the 1935
Constitution, Justice Maicolm had occasion to stress that it is a
necessary consequence of our republican institutions and
complements the right of free speech. 19 To paraphrase
opinion of Justice Rutledge speaking for the majority of the
American Supreme Court Thomas v. Collins, 20 it was not by
accident or coincidence that the right to freedom of speech
and of the press were toupled in a single guarantee with the
and to petition the rights of the people peaceably to assemble
and to petition the government for redress of grievances. All
these rights, while not Identical, are inseparable. the every
case, therefo re there is a limitation placed on the exercise of
this right, the judiciary is called upon to examine the effects of
the challenged governmental actuation. The sole justification
for a limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, of a
character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate
public interest. 21
2. Nowhere is the rationale that underlies the freedom
of expression and peaceable assembly better expressed than
in this excerpt from an opinion of Justice Frankfurter: "It must
never be forgotten, however, that the Bill of Rights was the
child of the Enlightenment. Back of the guaranty of free speech
lay faith in the power of an appeal to reason by all the peaceful
means for gaining access to the mind. It was in order to avert
force and explosions due to restrictions upon rational modes
of communication that the guaranty of free speech was given
a generous scope. But utterance in a context of violence can
lose its significance as an appeal to reason and become part of
an instrument of force. Such utterance was not meant to be
sheltered by the Constitution." 22 What was rightfully stressed
is the abandonment of reason, the utterance, whether verbal
or printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their-views,
even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort
to non-peaceful means may be the only alternative. Nor is this
the sole reason for the expression of dissent. It means more
than just the right to be heard of the person who feels
aggrieved or who is dissatisfied with things as they are. Its
value may lie in the fact that there may be something worth
hearing from the dissenter. That is to ensure a true ferment of
Ideas. There are, of course, well-defined limits. What is
guaranteed is peaceable assembly. One may not advocate
disorder in the name of protest, much less preach rebellion
under the cloak of dissent. The Constitution frowns on disorder
or tumult attending a rally or assembly. resort to force is ruled
out and outbreaks of violence to be avoided. The utmost calm
though is not required. As pointed out in an early Philippine
case, penned in 1907 to be precise, United States v. Apurado:
23 "It is rather to be expected that more or less disorder will
mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of
excitement, and the greater the grievance and the more
intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible
followers." 24 It bears repeating that for the constitutional
right to be invoked, riotous conduct, injury to property, and
acts of vandalism must be avoided, To give free rein to one's
destructive urges is to call for condemnation. It is to make a
mockery of the high estate occupied by intellectual liberty in
our scheme of values.
3. There can be no legal objection, absent the existence
of a clear and present danger of a substantive evil, on the
choice of Luneta as the place where the peace rally would
start. The Philippines is committed to the view expressed in the
plurality opinion, of 1939 vintage, of Justice Roberts in Hague
v. CIO: 25 Whenever the title of streets and parks may rest,
they have immemorially been held in trust for the use of the
public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public
places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a
citizen of the United States to use the streets and parks for
communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative,
and must be exercised in subordination to the general comfort
and convenience, and in consonance with peace and good
order; but it must not, in the guise of regulation, be abridged
or denied. 26 The above excerpt was quoted with approval in
Primicias v. Fugoso. 27 Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision,
where this Court categorically affirmed that plazas or parks
and streets are outside the commerce of man and thus
nullified a contract that leased Plaza Soledad of plaintiff-
municipality. Reference was made to such plaza "being a
promenade for public use," 29 which certainly is not the only
purpose that it could serve. To repeat, there can be no valid
reason why a permit should not be granted for the or oposed
march and rally starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of
the streets, to the gates of the US Embassy, hardly two block-
away at the Roxas Boulevard. Primicias v. Fugoso has resolved
any lurking doubt on the matter. In holding that the then
Mayor Fugoso of the City of Manila should grant a permit for a
public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the
decision in the case of Willis Cox vs. State of New Hampshire,
312 U.S., 569. In that case, the statute of New Hampshire P. L.
chap. 145, section 2, providing that 'no parade or procession
upon any ground abutting thereon, shall 'De permitted unless
a special license therefor shall first be explained from the
selectmen of the town or from licensing committee,' was
construed by the Supreme Court of New Hampshire as not
conferring upon the licensing board unfettered discretion to
refuse to grant the license, and held valid. And the Supreme
Court of the United States, in its decision (1941) penned by
Chief Justice Hughes affirming the judgment of the State
Supreme Court, held that 'a statute requiring persons using the
public streets for a parade or procession to procure a special
license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of
freedom of speech and press, where, as the statute is
construed by the state courts, the licensing authorities are
strictly limited, in the issuance of licenses, to a consideration
of the time, place, and manner of the parade or procession,
with a view to conserving the public convenience and of
affording an opportunity to provide proper policing, and are
not invested with arbitrary discretion to issue or refuse license,
... " 30 Nor should the point made by Chief Justice Hughes in a
subsequent portion of the opinion be ignored, "Civil liberties,
as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which
liberty itself would be lost in the excesses of unrestricted
abuses. The authority of a municipality to impose regulations
in order to assure the safety and convenience of the people in
the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means
of safeguarding the good order upon which they ultimately
depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a
restriction of the use of highways in that relation is designed
to promote the public convenience in the interest of all, it
cannot be disregarded by the attempted exercise of some civil
right which in other circumstances would be entitled to
protection." 31
5. There is a novel aspect to this case, If the rally were
confined to Luneta, no question, as noted, would have arisen.
So, too, if the march would end at another park. As previously
mentioned though, there would be a short program upon
reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed by
the handing over of a petition based on the resolution adopted
at the closing session of the Anti-Bases Coalition. The
Philippines is a signatory of the Vienna Convention on
Diplomatic Relations adopted in 1961. It was concurred in by
the then Philippine Senate on May 3, 1965 and the instrument
of ratification was signed by the President on October 11,
1965, and was thereafter deposited with the Secretary General
of the United Nations on November 15. As of that date then, it
was binding on the Philippines. The second paragraph of the
Article 22 reads: "2. The receiving State is under a special duty
to take appropriate steps to protect the premises of the
mission against any intrusion or damage and to prevent any
disturbance of the peace of the mission or impairment of its
dignity. " 32 The Constitution "adopts the generally accepted
principles of international law as part of the law of the land. ..."
33 To the extent that the Vienna Convention is a restatement
of the generally accepted principles of international law, it
should be a part of the law of the land. 34 That being the case,
if there were a clear and present danger of any intrusion or
damage, or disturbance of the peace of the mission, or
impairment of its dignity, there would be a justification for the
denial of the permit insofar as the terminal point would be the
Embassy. Moreover, respondent Mayor relied on Ordinance
No. 7295 of the City of Manila prohibiting the holding or
staging of rallies or demonstrations within a radius of five
hundred (500) feet from any foreign mission or chancery and
for other purposes. Unless the ordinance is nullified, or
declared ultra vires, its invocation as a defense is
understandable but not decisive, in view of the primacy
accorded the constitutional rights of free speech and
peaceable assembly. Even if shown then to be applicable, that
question the confronts this Court.
6. There is merit to the observation that except as to the
novel aspects of a litigation, the judgment must be confined
within the limits of previous decisions. The law declared on
past occasions is, on the whole, a safe guide, So it has been
here. Hence, as noted, on the afternoon of the hearing,
October 25, 1983, this Court issued the minute resolution
granting the mandatory injunction allowing the proposed
march and rally scheduled for the next day. That conclusion
was inevitable ill the absence of a clear and present danger of
a substantive, evil to a legitimate public interest. There was
no justification then to deny the exercise of the constitutional
rights of tree speech and peaceable assembly. These rights
are assured by our Constitution and the Universal Declaration
of Human Rights. 35 The participants to such assembly,
composed primarily of those in attendance at the
International Conference for General Disbarmament, World
Peace and the Removal of All Foreign Military Bases would
start from the Luneta. proceeding through Roxas Boulevard
to the gates of the United States Embassy located at the same
street. To repeat, it is settled law that as to public places,
especially so as to parks and streets, there is freedom of
access. Nor is their use dependent on who is the applicant for
the permit, whether an individual or a group. If it were, then
the freedom of access becomes discriminatory access, giving
rise to an equal protection question. The principle under
American doctrines was given utterance by Chief Justice
Hughes in these words: "The question, if the rights of free
speech and peaceable assembly are to be preserved, is not as
to the auspices under which the meeting is held but as to its
purpose; not as to The relations of the speakers, but whether
their utterances transcend the bounds of the freedom of
speech which the Constitution protects." 36 There could be
danger to public peace and safety if such a gathering were
marked by turbulence. That would deprive it of its peaceful
character. Even then, only the guilty parties should be held
accountable. It is true that the licensing official, here
respondent Mayor, is not devoid of discretion in determining
whether or not a permit would be granted. It is not, however,
unfettered discretion. While prudence requires that there be a
realistic appraisal not of what may possibly occur but of what
may probably occur, given all the relevant circumstances, still
the assumption — especially so where the assembly is
scheduled for a specific public — place is that the permit must
be for the assembly being held there. The exercise of such a
right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be "abridged on the plea
that it may be exercised in some other place." 37
7. In fairness to respondent Mayor, he acted on the
belief that Navarro v. Villegas 38 and Pagkakaisa ng
Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for
application. While the General rule is that a permit should
recognize the right of the applicants to hold their assembly at
a public place of their choice, another place may be designated
by the licensing authority if it be shown that there is a clear and
present danger of a substantive evil if no such change were
made. In the Navarro and the Pagkakaisa decisions, this Court
was persuaded that the clear and present danger test was
satisfied. The present situation is quite different. Hence the
decision reached by the Court. The mere assertion that
subversives may infiltrate the ranks of the demonstrators does
not suffice. Not that it should be overlooked. There was in this
case, however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police
Force, that the police force is in a position to cope with such
emergency should it arise That is to comply with its duty to
extend protection to the participants of such peaceable
assembly. Also from him came the commendable admission
that there were the least five previous demonstrations at the
Bayview hotel Area and Plaza Ferguson in front of the United
States Embassy where no untoward event occurred. It was
made clear by petitioner, through counsel, that no act
offensive to the dignity of the United States Mission in the
Philippines would take place and that, as mentioned at the
outset of this opinion, "all the necessary steps would be taken
by it 'to ensure a peaceful march and rally.' " 40 Assistant
Solicitor General Montenegro expressed the view that the
presence of policemen may in itself be a provocation. It is a
sufficient answer that they should stay at a discreet distance,
but ever ready and alert to cope with any contingency. There
is no need to repeat what was pointed out by Chief Justice
Hughes in Cox that precisely, it is the duty of the city
authorities to provide the proper police protection to those
exercising their right to peaceable assembly and freedom of
expression.
8. By way of a summary The applicants for a permit to
hold an assembly should inform the licensing authority of the
date, the public place where and the time when it will take
place. If it were a private place, only the consent of the owner
or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the
public official concerned to appraise whether there may be
valid objections to the grant of the permit or to its grant but at
another public place. It is an indispensable condition to such
refusal or modification that the clear and present danger test
be the standard for the decision reached. If he is of the view
that there is such an imminent and grave danger of a
substantive evil, the applicants must be heard on the matter.
Thereafter, his decision, whether favorable or adverse, must
be transmitted to them at the earliest opportunity. Thus if so
minded, then, can have recourse to the proper judicial
authority. Free speech and peaceable assembly, along with the
other intellectual freedoms, are highly ranked in our scheme
of constitutional values. It cannot be too strongly stressed that
on the judiciary, — even more so than on the other
departments — rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No
verbal formula, no sanctifying phrase can, of course, dispense
with what has been so felicitiously termed by Justice Holmes
"as the sovereign prerogative of judgment." Nonetheless, the
presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do
precedence and primacy. Clearly then, to the extent that there
may be inconsistencies between this resolution and that of
Navarro v. Villegas, that case is pro tanto modified. So it was
made clear in the original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the
applicability of Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations
within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. It is to be
admitted that it finds support In the previously quoted Article
22 of the Vienna Convention on Diplomatic Relations. There
was no showing, however, that the distance between the
chancery and the embassy gate is less than 500 feet. Even if it
could be shown that such a condition is satisfied. it does not
follow that respondent Mayor could legally act the way he did.
The validity of his denial of the permit sought could still be
challenged. It could be argued that a case of unconstitutional
application of such ordinance to the exercise of the right of
peaceable assembly presents itself. As in this case there was
no proof that the distance is less than 500 feet, the need to
pass on that issue was obviated, Should it come, then the
qualification and observation of Justices Makasiar and Plana
certainly cannot be summarily brushed aside. The high estate
accorded the rights to free speech and peaceable assembly
demands nothing less.
10. Ordinarily, the remedy in cases of this character is to
set aside the denial or the modification of the permit sought
and order the respondent official, to grant it. Nonetheless, as
there was urgency in this case, the proposed march and rally
being scheduled for the next day after the hearing, this Court.
in the exercise of its conceded authority, granted the
mandatory injunction in the resolution of October 25, 1983. It
may be noted that the peaceful character of the peace march
and rally on October 26 was not marred by any untoward
incident. So it has been in other assemblies held elsewhere. It
is quite reassuring such that both on the part of the national
government and the citizens, reason and moderation have
prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted.
No costs.
Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova
and Gutierrez, , Jr.,JJ., concur.
De Castro, J, is on leave.
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C.
LANTION, Presiding Judge, Regional Trial Court of Manila,
Branch 25, and MARK B. JIMENEZ, respondents.
RESOLUTION
PUNO, J.:
On January 18, 2000, by a vote of 9-6, we dismissed the
petition at bar and ordered the petitioner to furnish private
respondent copies of the extradition request and its
supporting papers and to grant him a reasonable period within
which to file his comment with supporting evidence.[1]
On February 3, 2000, the petitioner timely filed an Urgent
Motion for Reconsideration. He assails the decision on the
following grounds:
"The majority decision failed to appreciate the following facts
and points of substance and of value which, if considered,
would alter the result of the case, thus:
I. There is a substantial difference between an evaluation
process antecedent to the filing of an extradition petition in
court and a preliminary investigation.
II. Absence of notice and hearing during the evaluation process
will not result in a denial of fundamental fairness.
III. In the evaluation process, instituting a notice and hearing
requirement satisfies no higher objective.
IV. The deliberate omission of the notice and hearing
requirement in the Philippine Extradition Law is intended to
prevent flight.
V. There is a need to balance the interest between the
discretionary powers of government and the rights of an
individual.
VI. The instances cited in the assailed majority decision when
the twin rights of notice and hearing may be dispensed with in
this case results in a non sequitur conclusion.
VII. Jimenez is not placed in imminent danger of arrest by the
Executive Branch necessitating notice and hearing.
VIII. By instituting a 'proceeding' not contemplated by PD No.
1069, the Supreme Court has encroached upon the
constitutional boundaries separating it from the other two co-
equal branches of government.
IX. Bail is not a matter of right in proceedings leading to
extradition or in extradition proceedings."[2]
On March 28, 2000, a 58-page Comment was filed by the
private respondent Mark B. Jimenez, opposing petitioners
Urgent Motion for Reconsideration.
On April 5, 2000, petitioner filed an Urgent Motion to Allow
Continuation and Maintenance of Action and Filing of Reply.
Thereafter, petitioner filed on June 7, 2000 a Manifestation
with the attached Note 327/00 from the Embassy of Canada
and Note No. 34 from the Security Bureau of the Hongkong
SAR Government Secretariat. On August 15, 2000, private
respondent filed a Manifestation and Motion for Leave to File
Rejoinder in the event that petitioner's April 5, 2000 Motion
would be granted. Private respondent also filed on August 18,
2000, a Motion to Expunge from the records petitioner's June
7, 2000 Manifestation with its attached note verbales. Except
for the Motion to Allow Continuation and Maintenance of
Action, the Court denies these pending motions and hereby
resolves petitioner's Urgent Motion for Reconsideration.
The jugular issue is whether or not the private respondent is
entitled to the due process right to notice and hearing during
the evaluation stage of the extradition process.
We now hold that private respondent is bereft of the right to
notice and hearing during the evaluation stage of the
extradition process.
First. P.D. No. 1069[3] which implements the RP-US Extradition
Treaty provides the time when an extraditee shall be furnished
a copy of the petition for extradition as well as its supporting
papers, i.e., after the filing of the petition for extradition in the
extradition court, viz:
"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing;
Service of Notices. - (1) Immediately upon receipt of the
petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the
petition on the day and hour fixed in the order . . . Upon receipt
of the answer, or should the accused after having received the
summons fail to answer within the time fixed, the presiding
judge shall hear the case or set another date for the hearing
thereof.
(2) The order and notice as well as a copy of the warrant of
arrest, if issued, shall be promptly served each upon the
accused and the attorney having charge of the case."
It is of judicial notice that the summons includes the petition
for extradition which will be answered by the extraditee.
There is no provision in the RP-US Extradition Treaty and in
P.D. No. 1069 which gives an extraditee the right to demand
from the petitioner Secretary of Justice copies of the
extradition request from the US government and its
supporting documents and to comment thereon while the
request is still undergoing evaluation. We cannot write a
provision in the treaty giving private respondent that right
where there is none. It is well-settled that a "court cannot
alter, amend, or add to a treaty by the insertion of any clause,
small or great, or dispense with any of its conditions and
requirements or take away any qualification, or integral part
of any stipulation, upon any motion of equity, or general
convenience, or substantial justice."[4]
Second. All treaties, including the RP-US Extradition Treaty,
should be interpreted in light of their intent. Nothing less than
the Vienna Convention on the Law of Treaties to which the
Philippines is a signatory provides that "a treaty shall be
interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context
and in light of its object and purpose."[5] (emphasis supplied)
The preambular paragraphs of P.D. No. 1069 define its intent,
viz:
"WHEREAS, under the Constitution[,] 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;
WHEREAS, the suppression of crime is the concern not only of
the state where it is committed but also of any other state to
which the criminal may have escaped, because it saps the
foundation of social life and is an outrage upon humanity at
large, and it is in the interest of civilized communities that
crimes should not go unpunished;
WHEREAS, in recognition of this principle the Philippines
recently concluded an extradition treaty with the Republic of
Indonesia, and intends to conclude similar treaties with other
interested countries;
x x x." (emphasis supplied)
It cannot be gainsaid that today, countries like the Philippines
forge extradition treaties to arrest the dramatic rise of
international and transnational crimes like terrorism and drug
trafficking. Extradition treaties provide the assurance that the
punishment of these crimes will not be frustrated by the
frontiers of territorial sovereignty. Implicit in the treaties
should be the unbending commitment that the perpetrators of
these crimes will not be coddled by any signatory state.
It ought to follow that the RP-US Extradition Treaty calls for an
interpretation that will minimize if not prevent the escape of
extraditees from the long arm of the law and expedite their
trial. The submission of the private respondent, that as a
probable extraditee under the RP-US Extradition Treaty he
should be furnished a copy of the US government request for
his extradition and its supporting documents even while they
are still under evaluation by petitioner Secretary of Justice,
does not meet this desideratum. The fear of the petitioner
Secretary of Justice that the demanded notice is equivalent to
a notice to flee must be deeply rooted on the experience of the
executive branch of our government. As it comes from the
branch of our government in charge of the faithful execution
of our laws, it deserves the careful consideration of this Court.
In addition, it cannot be gainsaid that private respondents
demand for advance notice can delay the summary process of
executive evaluation of the extradition request and its
accompanying papers. The foresight of Justice Oliver Wendell
Holmes did not miss this danger. In 1911, he held:
"It is common in extradition cases to attempt to bring to bear
all the factitious niceties of a criminal trial at common law. But
it is a waste of time . . . if there is presented, even in somewhat
untechnical form according to our ideas, such reasonable
ground to suppose him guilty as to make it proper that he
should be tried, good faith to the demanding government
requires his surrender."[6] (emphasis supplied)
We erode no right of an extraditee when we do not allow time
to stand still on his prosecution. Justice is best served when
done without delay.
Third. An equally compelling factor to consider is the
understanding of the parties themselves to the RP-US
Extradition Treaty as well as the general interpretation of the
issue in question by other countries with similar treaties with
the Philippines. The rule is recognized that while courts have
the power to interpret treaties, the meaning given them by the
departments of government particularly charged with their
negotiation and enforcement is accorded great weight.[7] The
reason for the rule is laid down in Santos III v. Northwest Orient
Airlines, et al.,[8] where we stressed that a treaty is a joint
executive-legislative act which enjoys the presumption that "it
was first carefully studied and determined to be constitutional
before it was adopted and given the force of law in the
country."
Our executive department of government, thru the
Department of Foreign Affairs (DFA) and the Department of
Justice (DOJ), has steadfastly maintained that the RP-US
Extradition Treaty and P.D. No. 1069 do not grant the private
respondent a right to notice and hearing during the evaluation
stage of an extradition process.[9] This understanding of the
treaty is shared by the US government, the other party to the
treaty.[10] This interpretation by the two governments cannot
be given scant significance. It will be presumptuous for the
Court to assume that both governments did not understand
the terms of the treaty they concluded.
Yet, this is not all. Other countries with similar extradition
treaties with the Philippines have expressed the same
interpretation adopted by the Philippine and US governments.
Canadian[11] and Hongkong[12] authorities, thru appropriate
note verbales communicated to our Department of Foreign
Affairs, stated in unequivocal language that it is not an
international practice to afford a potential extraditee with a
copy of the extradition papers during the evaluation stage of
the extradition process. We cannot disregard such a
convergence of views unless it is manifestly erroneous.
Fourth. Private respondent, however, peddles the postulate
that he must be afforded the right to notice and hearing as
required by our Constitution. He buttresses his position by
likening an extradition proceeding to a criminal proceeding
and the evaluation stage to a preliminary investigation.
We are not persuaded. An extradition proceeding is sui
generis. It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the Bill
of Rights. To begin with, the process of extradition does not
involve the determination of the guilt or innocence of an
accused.[13] His guilt or innocence will be adjudged in the
court of the state where he will be extradited. Hence, as a rule,
constitutional rights that are only relevant to determine the
guilt or innocence of an accused cannot be invoked by an
extraditee especially by one whose extradition papers are still
undergoing evaluation.[14] As held by the US Supreme Court
in United States v. Galanis:
"An extradition proceeding is not a criminal prosecution, and
the constitutional safeguards that accompany a criminal trial
in this country do not shield an accused from extradition
pursuant to a valid treaty."[15]
There are other differences between an extradition
proceeding and a criminal proceeding. An extradition
proceeding is summary in nature while criminal proceedings
involve a full-blown trial.[16] In contradistinction to a criminal
proceeding, the rules of evidence in an extradition proceeding
allow admission of evidence under less stringent
standards.[17] In terms of the quantum of evidence to be
satisfied, a criminal case requires proof beyond reasonable
doubt for conviction[18] while a fugitive may be ordered
extradited "upon showing of the existence of a prima facie
case."[19] Finally, unlike in a criminal case where judgment
becomes executory upon being rendered final, in an
extradition proceeding, our courts may adjudge an individual
extraditable but the President has the final discretion to
extradite him.[20] The United States adheres to a similar
practice whereby the Secretary of State exercises wide
discretion in balancing the equities of the case and the
demands of the nation's foreign relations before making the
ultimate decision to extradite.[21]
As an extradition proceeding is not criminal in character and
the evaluation stage in an extradition proceeding is not akin to
a preliminary investigation, the due process safeguards in the
latter do not necessarily apply to the former. This we hold for
the procedural due process required by a given set of
circumstances "must begin with a determination of the precise
nature of the government function involved as well as the
private interest that has been affected by governmental
action."[22] The concept of due process is flexible for "not all
situations calling for procedural safeguards call for the same
kind of procedure."[23]
Fifth. Private respondent would also impress upon the Court
the urgency of his right to notice and hearing considering the
alleged threat to his liberty "which may be more priceless than
life."[24] The supposed threat to private respondents liberty is
perceived to come from several provisions of the RP-US
Extradition Treaty and P.D. No. 1069 which allow provisional
arrest and temporary detention.
We first deal with provisional arrest. The RP-US Extradition
Treaty provides as follows:
"PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the
provisional arrest of the person sought pending presentation
of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly
between the Philippine Department of Justice and the United
States Department of Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statement of the facts of the case, including, if
possible, the time and location of the offense;
d) a description of the laws violated;
e) a statement of the existence of a warrant of arrest or finding
of guilt or judgment of conviction against the person sought;
and
f) a statement that a request for extradition for the person
sought will follow.
3. The Requesting State shall be notified without delay of the
disposition of its application and the reasons for any denial.
4. A person who is provisionally arrested may be discharged
from custody upon the expiration of sixty (60) days from the
date of arrest pursuant to this Treaty if the executive authority
of the Requested State has not received the formal request for
extradition and the supporting documents required in Article
7." (emphasis supplied)
In relation to the above, Section 20 of P.D. No. 1069 provides:
"Sec. 20. Provisional Arrest.- (a) In case of urgency, the
requesting state may, pursuant to the relevant treaty or
convention and while the same remains in force, request for
the provisional arrest of the accused, pending receipt of the
request for extradition made in accordance with Section 4 of
this Decree.
(b) A request for provisional arrest shall be sent to the Director
of the National Bureau of Investigation, Manila, either through
the diplomatic channels or direct by post or telegraph.
(c) The Director of the National Bureau of Investigation or any
official acting on his behalf shall upon receipt of the request
immediately secure a warrant for the provisional arrest of the
accused from the presiding judge of the Court of First Instance
of the province or city having jurisdiction of the place, who
shall issue the warrant for the provisional arrest of the
accused. The Director of the National Bureau of Investigation
through the Secretary of Foreign Affairs shall inform the
requesting state of the result of its request.
(d) If within a period of 20 days after the provisional arrest the
Secretary of Foreign Affairs has not received the request for
extradition and the documents mentioned in Section 4 of this
Decree, the accused shall be released from custody."
(emphasis supplied)
Both the RP-US Extradition Treaty and P.D. No. 1069 clearly
provide that private respondent may be provisionally arrested
only pending receipt of the request for extradition. Our DFA
has long received the extradition request from the United
States and has turned it over to the DOJ. It is undisputed that
until today, the United States has not requested for private
respondents provisional arrest. Therefore, the threat to
private respondents liberty has passed. It is more imagined
than real.
Nor can the threat to private respondents liberty come from
Section 6 of P.D. No. 1069, which provides:

"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing,
Service of Notices.- (1) Immediately upon receipt of the
petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the
petition on the day and hour fixed in the order. [H]e may issue
a warrant for the immediate arrest of the accused which may
be served anywhere within the Philippines if it appears to the
presiding judge that the immediate arrest and temporary
detention of the accused will best serve the ends of justice. . .
(2) The order and notice as well as a copy of the warrant of
arrest, if issued, shall be promptly served each upon the
accused and the attorney having charge of the case."
(emphasis supplied)
It is evident from the above provision that a warrant of arrest
for the temporary detention of the accused pending the
extradition hearing may only be issued by the presiding judge
of the extradition court upon filing of the petition for
extradition. As the extradition process is still in the evaluation
stage of pertinent documents and there is no certainty that a
petition for extradition will be filed in the appropriate
extradition court, the threat to private respondents liberty is
merely hypothetical.
Sixth. To be sure, private respondents plea for due process
deserves serious consideration involving as it does his
primordial right to liberty. His plea to due process, however,
collides with important state interests which cannot also be
ignored for they serve the interest of the greater majority. The
clash of rights demands a delicate balancing of interests
approach which is a "fundamental postulate of constitutional
law."[25] The approach requires that we "take conscious and
detailed consideration of the interplay of interests observable
in a given situation or type of situation."[26] These interests
usually consist in the exercise by an individual of his basic
freedoms on the one hand, and the governments promotion
of fundamental public interest or policy objectives on the
other.[27]
In the case at bar, on one end of the balancing pole is the
private respondents claim to due process predicated on
Section 1, Article III of the Constitution, which provides that
"No person shall be deprived of life, liberty, or property
without due process of law . . ." Without a bubble of doubt,
procedural due process of law lies at the foundation of a
civilized society which accords paramount importance to
justice and fairness. It has to be accorded the weight it
deserves.
This brings us to the other end of the balancing pole. Petitioner
avers that the Court should give more weight to our national
commitment under the RP-US Extradition Treaty to expedite
the extradition to the United States of persons charged with
violation of some of its laws. Petitioner also emphasizes the
need to defer to the judgment of the Executive on matters
relating to foreign affairs in order not to weaken if not violate
the principle of separation of powers.
Considering that in the case at bar, the extradition proceeding
is only at its evaluation stage, the nature of the right being
claimed by the private respondent is nebulous and the degree
of prejudice he will allegedly suffer is weak, we accord greater
weight to the interests espoused by the government thru the
petitioner Secretary of Justice. In Angara v. Electoral
Commission, we held that the "Constitution has blocked out
with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the
government."[28] Under our constitutional scheme, executive
power is vested in the President of the Philippines.[29]
Executive power includes, among others, the power to
contract or guarantee foreign loans and the power to enter
into treaties or international agreements.[30] The task of
safeguarding that these treaties are duly honored devolves
upon the executive department which has the competence
and authority to so act in the international arena.[31] It is
traditionally held that the President has power and even
supremacy over the countrys foreign relations.[32] The
executive department is aptly accorded deference on matters
of foreign relations considering the Presidents most
comprehensive and most confidential information about the
international scene of which he is regularly briefed by our
diplomatic and consular officials. His access to ultra-sensitive
military intelligence data is also unlimited.[33] The deference
we give to the executive department is dictated by the
principle of separation of powers. This principle is one of the
cornerstones of our democratic government. It cannot be
eroded without endangering our government.
The Philippines also has a national interest to help in
suppressing crimes and one way to do it is to facilitate the
extradition of persons covered by treaties duly entered by our
government. More and more, crimes are becoming the
concern of one world. Laws involving crimes and crime
prevention are undergoing universalization. One manifest
purpose of this trend towards globalization is to deny easy
refuge to a criminal whose activities threaten the peace and
progress of civilized countries. It is to the great interest of the
Philippines to be part of this irreversible movement in light of
its vulnerability to crimes, especially transnational crimes.
In tilting the balance in favor of the interests of the State, the
Court stresses that it is not ruling that the private respondent
has no right to due process at all throughout the length and
breadth of the extrajudicial proceedings. Procedural due
process requires a determination of what process is due, when
it is due, and the degree of what is due. Stated otherwise, a
prior determination should be made as to whether procedural
protections are at all due and when they are due, which in turn
depends on the extent to which an individual will be
"condemned to suffer grievous loss."[34] We have explained
why an extraditee has no right to notice and hearing during the
evaluation stage of the extradition process. As aforesaid, P.D.
No. 1069 which implements the RP-US Extradition Treaty
affords an extraditee sufficient opportunity to meet the
evidence against him once the petition is filed in court. The
time for the extraditee to know the basis of the request for his
extradition is merely moved to the filing in court of the formal
petition for extradition. The extraditee's right to know is
momentarily withheld during the evaluation stage of the
extradition process to accommodate the more compelling
interest of the State to prevent escape of potential extraditees
which can be precipitated by premature information of the
basis of the request for his extradition. No less compelling at
that stage of the extradition proceedings is the need to be
more deferential to the judgment of a co-equal branch of the
government, the Executive, which has been endowed by our
Constitution with greater power over matters involving our
foreign relations. Needless to state, this balance of interests is
not a static but a moving balance which can be adjusted as the
extradition process moves from the administrative stage to the
judicial stage and to the execution stage depending on factors
that will come into play. In sum, we rule that the temporary
hold on private respondent's privilege of notice and hearing is
a soft restraint on his right to due process which will not
deprive him of fundamental fairness should he decide to resist
the request for his extradition to the United States. There is no
denial of due process as long as fundamental fairness is
assured a party.
We end where we began. A myopic interpretation of the due
process clause would not suffice to resolve the conflicting
rights in the case at bar. With the global village shrinking at a
rapid pace, propelled as it is by technological leaps in
transportation and communication, we need to push further
back our horizons and work with the rest of the civilized
nations and move closer to the universal goals of "peace,
equality, justice, freedom, cooperation and amity with all
nations."[35] In the end, it is the individual who will reap the
harvest of peace and prosperity from these efforts.
WHEREFORE, the Urgent Motion for Reconsideration is
GRANTED. The Decision in the case at bar promulgated on
January18, 2000 is REVERSED. The assailed Order issued by the
public respondent judge on August 9, 1999 is SET ASIDE. The
temporary restraining order issued by this Court on August 17,
1999 is made PERMANENT. The Regional Trial Court of Manila,
Branch 25 is enjoined from conducting further proceedings in
Civil Case No. 99-94684.
SO ORDERED.
[G.R. No. 118295. May 2, 1997]
WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as
members of the Philippine Senate and as taxpayers;
GREGORIO ANDOLANA and JOKER ARROYO as members of the
House of Representatives and as taxpayers; NICANOR P.
PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL
LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM
ASSOCIATION, CENTER FOR ALTERNATIVE DEVELOPMENT
INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC.,
PHILIPPINE RURAL RECONSTRUCTION MOVEMENT,
DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS,
INC., and PHILIPPINE PEASANT INSTITUTE, in representation of
various taxpayers and as non-governmental organizations,
petitioners, vs. EDGARDO ANGARA, ALBERTO ROMULO,
LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO
AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO
HERRERA, JOSE LINA, GLORIA MACAPAGAL-ARROYO,
ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA, SANTANINA
RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and
FREDDIE WEBB, in their respective capacities as members of
the Philippine Senate who concurred in the ratification by the
President of the Philippines of the Agreement Establishing the
World Trade Organization; SALVADOR ENRIQUEZ, in his
capacity as Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry;
ROBERTO SEBASTIAN, in his capacity as Secretary of
Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary
of Finance; ROBERTO ROMULO, in his capacity as Secretary of
Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as
Executive Secretary, respondents.
DECISION
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade
Organization, abetted by the membership thereto of the vast
majority of countries has revolutionized international business
and economic relations amongst states. It has irreversibly
propelled the world towards trade liberalization and economic
globalization. Liberalization, globalization, deregulation and
privatization, the third-millennium buzz words, are ushering in
a new borderless world of business by sweeping away as mere
historical relics the heretofore traditional modes of promoting
and protecting national economies like tariffs, export
subsidies, import quotas, quantitative restrictions, tax
exemptions and currency controls. Finding market niches and
becoming the best in specific industries in a market-driven and
export-oriented global scenario are replacing age-old beggar-
thy-neighbor policies that unilaterally protect weak and
inefficient domestic producers of goods and services. In the
words of Peter Drucker, the well-known management guru,
Increased participation in the world economy has become the
key to domestic economic growth and prosperity.
Brief Historical Background
To hasten worldwide recovery from the devastation wrought
by the Second World War, plans for the establishment of three
multilateral institutions -- inspired by that grand political body,
the United Nations -- were discussed at Dumbarton Oaks and
Bretton Woods. The first was the World Bank (WB) which was
to address the rehabilitation and reconstruction of war-
ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal with
currency problems; and the third, the International Trade
Organization (ITO), which was to foster order and
predictability in world trade and to minimize unilateral
protectionist policies that invite challenge, even retaliation,
from other states. However, for a variety of reasons, including
its non-ratification by the United States, the ITO, unlike the IMF
and WB, never took off. What remained was only GATT -- the
General Agreement on Tariffs and Trade. GATT was a collection
of treaties governing access to the economies of treaty
adherents with no institutionalized body administering the
agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of
negotiations, principally the Kennedy Round, the Tokyo Round
and the Uruguay Round, the world finally gave birth to that
administering body -- the World Trade Organization -- with the
signing of the Final Act in Marrakesh, Morocco and the
ratification of the WTO Agreement by its members.[1]
Like many other developing countries, the Philippines joined
WTO as a founding member with the goal, as articulated by
President Fidel V. Ramos in two letters to the Senate (infra), of
improving Philippine access to foreign markets, especially its
major trading partners, through the reduction of tariffs on its
exports, particularly agricultural and industrial products. The
President also saw in the WTO the opening of new
opportunities for the services sector x x x, (the reduction of)
costs and uncertainty associated with exporting x x x, and (the
attraction of) more investments into the country. Although the
Chief Executive did not expressly mention it in his letter, the
Philippines - - and this is of special interest to the legal
profession - - will benefit from the WTO system of dispute
settlement by judicial adjudication through the independent
WTO settlement bodies called (1) Dispute Settlement Panels
and (2) Appellate Tribunal. Heretofore, trade disputes were
settled mainly through negotiations where solutions were
arrived at frequently on the basis of relative bargaining
strengths, and where naturally, weak and underdeveloped
countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines to
place nationals and products of member-countries on the
same footing as Filipinos and local products and (2) that the
WTO intrudes, limits and/or impairs the constitutional powers
of both Congress and the Supreme Court, the instant petition
before this Court assails the WTO Agreement for violating the
mandate of the 1987 Constitution to develop a self-reliant and
independent national economy effectively controlled by
Filipinos x x x (to) give preference to qualified Filipinos (and to)
promote the preferential use of Filipino labor, domestic
materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit
Philippine participation in worldwide trade liberalization and
economic globalization? Does it prescribe Philippine
integration into a global economy that is liberalized,
deregulated and privatized? These are the main questions
raised in this petition for certiorari, prohibition and mandamus
under Rule 65 of the Rules of Court praying (1) for the
nullification, on constitutional grounds, of the concurrence of
the Philippine Senate in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the
prohibition of its implementation and enforcement through
the release and utilization of public funds, the assignment of
public officials and employees, as well as the use of
government properties and resources by respondent-heads of
various executive offices concerned therewith. This
concurrence is embodied in Senate Resolution No. 97, dated
December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then
Secretary of the Department of Trade and Industry (Secretary
Navarro, for brevity), representing the Government of the
Republic of the Philippines, signed in Marrakesh, Morocco, the
Final Act Embodying the Results of the Uruguay Round of
Multilateral Negotiations (Final Act, for brevity).
By signing the Final Act,[2] Secretary Navarro on behalf of the
Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the
consideration of their respective competent authorities, with
a view to seeking approval of the Agreement in accordance
with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate
received a letter dated August 11, 1994 from the President of
the Philippines,[3] stating among others that the Uruguay
Round Final Act is hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the
Constitution.
On August 13, 1994, the members of the Philippine Senate
received another letter from the President of the
Philippines[4] likewise dated August 11, 1994, which stated
among others that the Uruguay Round Final Act, the
Agreement Establishing the World Trade Organization, the
Ministerial Declarations and Decisions, and the Understanding
on Commitments in Financial Services are hereby submitted to
the Senate for its concurrence pursuant to Section 21, Article
VII of the Constitution.
On December 9, 1994, the President of the Philippines certified
the necessity of the immediate adoption of P.S. 1083, a
resolution entitled Concurring in the Ratification of the
Agreement Establishing the World Trade Organization.[5]
On December 14, 1994, the Philippine Senate adopted
Resolution No. 97 which Resolved, as it is hereby resolved, that
the Senate concur, as it hereby concurs, in the ratification by
the President of the Philippines of the Agreement Establishing
the World Trade Organization.[6] The text of the WTO
Agreement is written on pages 137 et seq. of Volume I of the
36-volume Uruguay Round of Multilateral Trade Negotiations
and includes various agreements and associated legal
instruments (identified in the said Agreement as Annexes 1, 2
and 3 thereto and collectively referred to as Multilateral Trade
Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994
Agreement on Implementation of Article VII of the General on
Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and
Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing the
Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines
signed[7] the Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS,
President of the Republic of the Philippines, after having seen
and considered the aforementioned Agreement Establishing
the World Trade Organization and the agreements and
associated legal instruments included in Annexes one (1), two
(2) and three (3) of that Agreement which are integral parts
thereof, signed at Marrakesh, Morocco on 15 April 1994, do
hereby ratify and confirm the same and every Article and
Clause thereof.
To emphasize, the WTO Agreement ratified by the President of
the Philippines is composed of the Agreement Proper and the
associated legal instruments included in Annexes one (1), two
(2) and three (3) of that Agreement which are integral parts
thereof.
On the other hand, the Final Act signed by Secretary Navarro
embodies not only the WTO Agreement (and its integral
annexes aforementioned) but also (1) the Ministerial
Declarations and Decisions and (2) the Understanding on
Commitments in Financial Services. In his Memorandum dated
May 13, 1996,[8] the Solicitor General describes these two
latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five
declarations and decisions on a wide range of matters, such as
measures in favor of least developed countries, notification
procedures, relationship of WTO with the International
Monetary Fund (IMF), and agreements on technical barriers to
trade and on dispute settlement.
The Understanding on Commitments in Financial Services
dwell on, among other things, standstill or limitations and
qualifications of commitments to existing non-conforming
measures, market access, national treatment, and definitions
of non-resident supplier of financial services, commercial
presence and new financial service.
On December 29, 1994, the present petition was filed. After
careful deliberation on respondents comment and petitioners
reply thereto, the Court resolved on December 12, 1995, to
give due course to the petition, and the parties thereafter filed
their respective memoranda. The Court also requested the
Honorable Lilia R. Bautista, the Philippine Ambassador to the
United Nations stationed in Geneva, Switzerland, to submit a
paper, hereafter referred to as Bautista Paper,[9] for brevity,
(1) providing a historical background of and (2) summarizing
the said agreements.
During the Oral Argument held on August 27, 1996, the Court
directed:
(a) the petitioners to submit the (1) Senate Committee Report
on the matter in controversy and (2) the transcript of
proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1)
a list of Philippine treaties signed prior to the Philippine
adherence to the WTO Agreement, which derogate from
Philippine sovereignty and (2) copies of the multi-volume WTO
Agreement and other documents mentioned in the Final Act,
as soon as possible.
After receipt of the foregoing documents, the Court said it
would consider the case submitted for resolution. In a
Compliance dated September 16, 1996, the Solicitor General
submitted a printed copy of the 36-volume Uruguay Round of
Multilateral Trade Negotiations, and in another Compliance
dated October 24, 1996, he listed the various bilateral or
multilateral treaties or international instruments involving
derogation of Philippine sovereignty. Petitioners, on the other
hand, submitted their Compliance dated January 28, 1997, on
January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners
summarized the issues as follows:
A. Whether the petition presents a political question or is
otherwise not justiciable.
B. Whether the petitioner members of the Senate who
participated in the deliberations and voting leading to the
concurrence are estopped from impugning the validity of the
Agreement Establishing the World Trade Organization or of the
validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the
World Trade Organization contravene the provisions of Sec.
19, Article II, and Secs. 10 and 12, Article XII, all of the 1987
Philippine Constitution.
D. Whether provisions of the Agreement Establishing the
World Trade Organization unduly limit, restrict and impair
Philippine sovereignty specifically the legislative power which,
under Sec. 2, Article VI, 1987 Philippine Constitution is vested
in the Congress of the Philippines;
E. Whether provisions of the Agreement Establishing the
World Trade Organization interfere with the exercise of judicial
power.
F. Whether the respondent members of the Senate acted in
grave abuse of discretion amounting to lack or excess of
jurisdiction when they voted for concurrence in the ratification
of the constitutionally-infirm Agreement Establishing the
World Trade Organization.
G. Whether the respondent members of the Senate acted in
grave abuse of discretion amounting to lack or excess of
jurisdiction when they concurred only in the ratification of the
Agreement Establishing the World Trade Organization, and not
with the Presidential submission which included the Final Act,
Ministerial Declaration and Decisions, and the Understanding
on Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for
respondents synthesized the several issues raised by
petitioners into the following:[10]
1. Whether or not the provisions of the Agreement
Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in
Annexes one (1), two (2) and three (3) of that agreement cited
by petitioners directly contravene or undermine the letter,
spirit and intent of Section 19, Article II and Sections 10 and 12,
Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly
limit, restrict or impair the exercise of legislative power by
Congress.
3. Whether or not certain provisions of the Agreement impair
the exercise of judicial power by this Honorable Court in
promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate in the
ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization implied
rejection of the treaty embodied in the Final Act.
By raising and arguing only four issues against the seven
presented by petitioners, the Solicitor General has effectively
ignored three, namely: (1) whether the petition presents a
political question or is otherwise not justiciable; (2) whether
petitioner-members of the Senate (Wigberto E. Taada and
Anna Dominique Coseteng) are estopped from joining this suit;
and (3) whether the respondent-members of the Senate acted
in grave abuse of discretion when they voted for concurrence
in the ratification of the WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with these three
issues thus:
(1) The political question issue -- being very fundamental and
vital, and being a matter that probes into the very jurisdiction
of this Court to hear and decide this case -- was deliberated
upon by the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this
defense is waivable and the respondents have effectively
waived it by not pursuing it in any of their pleadings; in any
event, this issue, even if ruled in respondents favor, will not
cause the petitions dismissal as there are petitioners other
than the two senators, who are not vulnerable to the defense
of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of
the respondent senators will be taken up as an integral part of
the disposition of the four issues raised by the Solicitor
General.
During its deliberations on the case, the Court noted that the
respondents did not question the locus standi of petitioners.
Hence, they are also deemed to have waived the benefit of
such issue. They probably realized that grave constitutional
issues, expenditures of public funds and serious international
commitments of the nation are involved here, and that
transcendental public interest requires that the substantive
issues be met head on and decided on the merits, rather than
skirted or deflected by procedural matters.[11]
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION
INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT
HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS
THREE ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS.
10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS
ANNEXES LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF
LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH
THE EXERCISE OF JUDICIAL POWER BY THIS COURT IN
PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID,
CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL
SERVICES?
The First Issue: Does the Court Have Jurisdiction Over the
Controversy?
In seeking to nullify an act of the Philippine Senate on the
ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the
legislative branch 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. The question thus posed
is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is
upheld.[12] Once a controversy as to the application or
interpretation of a constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which
the Court is bound by constitutional mandate to decide.[13]
The jurisdiction of this Court to adjudicate the matters[14]
raised in the petition is clearly set out in the 1987
Constitution,[15] as follows:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and 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.
The foregoing text emphasizes the judicial departments duty
and power to strike down grave abuse of discretion on the part
of any branch or instrumentality of government including
Congress. It is an innovation in our political law.[16] As
explained by former Chief Justice Roberto Concepcion,[17] the
judiciary is the final arbiter on the question of whether or not
a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction or so capriciously as to
constitute an abuse of discretion amounting to excess of
jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many
cases,[18] 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.
As the petition alleges grave abuse of discretion and as there
is no other plain, speedy or adequate remedy in the ordinary
course of law, we have no hesitation at all in holding that this
petition should be given due course and the vital questions
raised therein ruled upon under Rule 65 of the Rules of Court.
Indeed, certiorari, prohibition and mandamus are appropriate
remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive
officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this
petition, this Court will not review the wisdom of the decision
of the President and the Senate in enlisting the country into
the WTO, or pass upon the merits of trade liberalization as a
policy espoused by said international body. Neither will it rule
on the propriety of the governments economic policy of
reducing/removing tariffs, taxes, subsidies, quantitative
restrictions, and other import/trade barriers. Rather, it will
only exercise its constitutional duty to determine whether or
not there had been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the Senate in
ratifying the WTO Agreement and its three annexes.
Second Issue: The WTO Agreement and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of
the Constitution mandating economic nationalism are violated
by the so-called parity provisions and national treatment
clauses scattered in various parts not only of the WTO
Agreement and its annexes but also in the Ministerial Decisions
and Declarations and in the Understanding on Commitments
in Financial Services.
Specifically, the flagship constitutional provisions referred to
are Sec. 19, Article II, and Secs. 10 and 12, Article XII, of the
Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES AND STATE POLICIES
xx xx xx xx
Sec. 19. The State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos.
xx xx xx xx
Article XII
NATIONAL ECONOMY AND PATRIMONY
xx xx xx xx
Sec. 10. x x x. The Congress shall enact measures that will
encourage the formation and operation of enterprises whose
capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give
preference to qualified Filipinos.
xx xx xx xx
Sec. 12. The State shall promote the preferential use of Filipino
labor, domestic materials and locally produced goods, and
adopt measures that help make them competitive.
Petitioners aver that these sacred constitutional principles are
desecrated by the following WTO provisions quoted in their
memorandum:[19]
a) In the area of investment measures related to trade in goods
(TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under
GATT 1994. no Member shall apply any TRIM that is
inconsistent with the provisions of Article III or Article XI of
GATT 1994.
2. An Illustrative list of TRIMS that are inconsistent with the
obligations of general elimination of quantitative restrictions
provided for in paragraph I of Article XI of GATT 1994 is
contained in the Annex to this Agreement. (Agreement on
Trade-Related Investment Measures, Vol. 27, Uruguay Round,
Legal Instruments, p.22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national
treatment provided for in paragraph 4 of Article III of GATT
1994 include those which are mandatory or enforceable under
domestic law or under administrative rulings, or compliance
with which is necessary to obtain an advantage, and which
require:
(a) the purchase or use by an enterprise of products of
domestic origin or from any domestic source, whether
specified in terms of particular products, in terms of volume or
value of products, or in terms of proportion of volume or value
of its local production; or
(b) that an enterprises purchases or use of imported products
be limited to an amount related to the volume or value of local
products that it exports.
2. TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in
paragraph 1 of Article XI of GATT 1994 include those which are
mandatory or enforceable under domestic laws or under
administrative rulings, or compliance with which is necessary
to obtain an advantage, and which restrict:
(a) the importation by an enterprise of products used in or
related to the local production that it exports;
(b) the importation by an enterprise of products used in or
related to its local production by restricting its access to
foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of
particular products, in terms of volume or value of products,
or in terms of a preparation of volume or value of its local
production. (Annex to the Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round Legal
Documents, p.22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994 referred to is
quoted as follows:
The products of the territory of any contracting party imported
into the territory of any other contracting party shall be
accorded treatment no less favorable than that accorded to
like products of national origin in respect of laws, regulations
and requirements affecting their internal sale, offering for sale,
purchase, transportation, distribution or use. the provisions of
this paragraph shall not prevent the application of differential
internal transportation charges which are based exclusively on
the economic operation of the means of transport and not on
the nationality of the product. (Article III, GATT 1947, as
amended by the Protocol Modifying Part II, and Article XXVI of
GATT, 14 September 1948, 62 UMTS 82-84 in relation to
paragraph 1(a) of the General Agreement on Tariffs and Trade
1994, Vol. 1, Uruguay Round, Legal Instruments p.177,
emphasis supplied).
b) In the area of trade related aspects of intellectual property
rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members
treatment no less favourable than that it accords to its own
nationals with regard to the protection of intellectual
property... (par. 1, Article 3, Agreement on Trade-Related
Aspect of Intellectual Property rights, Vol. 31, Uruguay Round,
Legal Instruments, p.25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any
conditions and qualifications set out therein, each Member
shall accord to services and service suppliers of any other
Member, in respect of all measures affecting the supply of
services, treatment no less favourable than it accords to its
own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by
according to services and service suppliers of any other
Member, either formally identical treatment or formally
different treatment to that it accords to its own like services
and service suppliers.
3. Formally identical or formally different treatment shall be
considered to be less favourable if it modifies the conditions of
completion in favour of services or service suppliers of the
Member compared to like services or service suppliers of any
other Member. (Article XVII, General Agreement on Trade in
Services, Vol. 28, Uruguay Round Legal Instruments, p.22610
emphasis supplied).
It is petitioners position that the foregoing national treatment
and parity provisions of the WTO Agreement place nationals
and products of member countries on the same footing as
Filipinos and local products, in contravention of the Filipino
First policy of the Constitution. They allegedly render
meaningless the phrase effectively controlled by Filipinos. The
constitutional conflict becomes more manifest when viewed in
the context of the clear duty imposed on the Philippines as a
WTO member to ensure the conformity of its laws, regulations
and administrative procedures with its obligations as provided
in the annexed agreements.[20] Petitioners further argue that
these provisions contravene constitutional limitations on the
role exports play in national development and negate the
preferential treatment accorded to Filipino labor, domestic
materials and locally produced goods.
On the other hand, respondents through the Solicitor General
counter (1) that such Charter provisions are not self-executing
and merely set out general policies; (2) that these nationalistic
portions of the Constitution invoked by petitioners should not
be read in isolation but should be related to other relevant
provisions of Art. XII, particularly Secs. 1 and 13 thereof; (3)
that read properly, the cited WTO clauses do not conflict with
the Constitution; and (4) that the WTO Agreement contains
sufficient provisions to protect developing countries like the
Philippines from the harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles Not Self-Executing
By its very title, Article II of the Constitution is a declaration of
principles and state policies. The counterpart of this article in
the 1935 Constitution[21] is called the basic political creed of
the nation by Dean Vicente Sinco.[22] These principles in
Article II are not intended to be self-executing principles ready
for enforcement through the courts.[23] They are used by the
judiciary as aids or as guides in the exercise of its power of
judicial review, and by the legislature in its enactment of laws.
As held in the leading case of Kilosbayan, Incorporated vs.
Morato,[24] the principles and state policies enumerated in
Article II and some sections of Article XII are not self-executing
provisions, the disregard of which can give rise to a cause of
action in the courts. They do not embody judicially enforceable
constitutional rights but guidelines for legislation.
In the same light, we held in Basco vs. Pagcor[25] that broad
constitutional principles need legislative enactments to
implement them, thus:
On petitioners allegation that P.D. 1869 violates Sections 11
(Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article
II; Section 13 (Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely statements of
principles and policies. As such, they are basically not self-
executing, meaning a law should be passed by Congress to
clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended
to be self-executing principles ready for enforcement through
the courts. They were rather directives addressed to the
executive and to the legislature. If the executive and the
legislature failed to heed the directives of the article, the
available remedy was not judicial but political. The electorate
could express their displeasure with the failure of the
executive and the legislature through the language of the
ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged
infringement of broad constitutional principles are sourced
from basic considerations of due process and the lack of
judicial authority to wade into the uncharted ocean of social
and economic policy making. Mr. Justice Florentino P. Feliciano
in his concurring opinion in Oposa vs. Factoran, Jr.,[26]
explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial
court, show a more specific legal right -- a right cast in language
of a significantly lower order of generality than Article II (15) of
the Constitution -- that is or may be violated by the actions, or
failures to act, imputed to the public respondent by petitioners
so that the trial court can validly render judgment granting all
or part of the relief prayed for. To my mind, the court should
be understood as simply saying that such a more specific legal
right or rights may well exist in our corpus of law, considering
the general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the
trial court should have given petitioners an effective
opportunity so to demonstrate, instead of aborting the
proceedings on a motion to dismiss.
It seems to me important that the legal right which is an
essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or statutory
policy, for at least two (2) reasons. One is that unless the legal
right claimed to have been violated or disregarded is given
specification in operational terms, defendants may well be
unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration -- where a
specific violation of law or applicable regulation is not alleged
or proved, petitioners can be expected to fall back on the
expanded conception of judicial power in the second
paragraph of Section 1 of Article VIII of the Constitution which
reads:
Section 1. x x x
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and 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. (Emphases supplied)
When substantive standards as general as the right to a
balanced and healthy ecology and the right to health are
combined with remedial standards as broad ranging as a grave
abuse of discretion amounting to lack or excess of jurisdiction,
the result will be, it is respectfully submitted, to propel courts
into the uncharted ocean of social and economic policy
making. At least in respect of the vast area of environmental
protection and management, our courts have no claim to
special technical competence and experience and professional
qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making
departments -- the legislative and executive departments --
must be given a real and effective opportunity to fashion and
promulgate those norms and standards, and to implement
them before the courts should intervene.
Economic Nationalism Should Be Read with Other
Constitutional Mandates to Attain Balanced Development of
Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from
merely laying down general principles relating to the national
economy and patrimony, should be read and understood in
relation to the other sections in said article, especially Secs. 1
and 13 thereof which read:
Section 1. The goals of the national economy are a more
equitable distribution of opportunities, income, and wealth; a
sustained increase in the amount of goods and services
produced by the nation for the benefit of the people; and an
expanding productivity as the key to raising the quality of life
for all, especially the underprivileged.
The State shall promote industrialization and full employment
based on sound agricultural development and agrarian reform,
through industries that make full and efficient use of human
and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall
protect Filipino enterprises against unfair foreign competition
and trade practices.
In the pursuit of these goals, all sectors of the economy and all
regions of the country shall be given optimum opportunity to
develop. x x x
xxxxxxxxx
Sec. 13. The State shall pursue a trade policy that serves the
general welfare and utilizes all forms and arrangements of
exchange on the basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the
basic goals of national economic development, as follows:
1. A more equitable distribution of opportunities, income and
wealth;
2. A sustained increase in the amount of goods and services
provided by the nation for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of
life for all especially the underprivileged.
With these goals in context, the Constitution then ordains the
ideals of economic nationalism (1) by expressing preference in
favor of qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony[27]
and in the use of Filipino labor, domestic materials and locally-
produced goods; (2) by mandating the State to adopt
measures that help make them competitive;[28] and (3) by
requiring the State to develop a self-reliant and independent
national economy effectively controlled by Filipinos.[29] In
similar language, the Constitution takes into account the
realities of the outside world as it requires the pursuit of a
trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality
and reciprocity;[30] and speaks of industries which are
competitive in both domestic and foreign markets as well as of
the protection of Filipino enterprises against unfair foreign
competition and trade practices.
It is true that in the recent case of Manila Prince Hotel vs.
Government Service Insurance System, et al.,[31] this Court
held that Sec. 10, second par., Art. XII of the 1987 Constitution
is a mandatory, positive command which is complete in itself
and which needs no further guidelines or implementing laws
or rules for its enforcement. From its very words the provision
does not require any legislation to put it in operation. It is per
se judicially enforceable. However, as the constitutional
provision itself states, it is enforceable only in regard to the
grants of rights, privileges and concessions covering national
economy and patrimony and not to every aspect of trade and
commerce. It refers to exceptions rather than the rule. The
issue here is not whether this paragraph of Sec. 10 of Art. XII is
self-executing or not. Rather, the issue is whether, as a rule,
there are enough balancing provisions in the Constitution to
allow the Senate to ratify the Philippine concurrence in the
WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor
of Filipino goods, services, labor and enterprises, at the same
time, it recognizes the need for business exchange with the
rest of the world on the bases of equality and reciprocity and
limits protection of Filipino enterprises only against foreign
competition and trade practices that are unfair.[32] In other
words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and
services in the development of the Philippine economy. While
the Constitution does not encourage the unlimited entry of
foreign goods, services and investments into the country, it
does not prohibit them either. In fact, it allows an exchange on
the basis of equality and reciprocity, frowning only on foreign
competition that is unfair.
WTO Recognizes Need to Protect Weak Economies
Upon the other hand, respondents maintain that the WTO
itself has some built-in advantages to protect weak and
developing economies, which comprise the vast majority of its
members. Unlike in the UN where major states have
permanent seats and veto powers in the Security Council, in
the WTO, decisions are made on the basis of sovereign
equality, with each members vote equal in weight to that of
any other. There is no WTO equivalent of the UN Security
Council.
WTO decides by consensus whenever possible, otherwise,
decisions of the Ministerial Conference and the General
Council shall be taken by the majority of the votes cast, except
in cases of interpretation of the Agreement or waiver of the
obligation of a member which would require three fourths
vote. Amendments would require two thirds vote in general.
Amendments to MFN provisions and the Amendments
provision will require assent of all members. Any member may
withdraw from the Agreement upon the expiration of six
months from the date of notice of withdrawals.[33]
Hence, poor countries can protect their common interests
more effectively through the WTO than through one-on-one
negotiations with developed countries. Within the WTO,
developing countries can form powerful blocs to push their
economic agenda more decisively than outside the
Organization. This is not merely a matter of practical alliances
but a negotiating strategy rooted in law. Thus, the basic
principles underlying the WTO Agreement recognize the need
of developing countries like the Philippines to share in the
growth in international trade commensurate with the needs of
their economic development. These basic principles are found
in the preamble[34] of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and
economic endeavour should be conducted with a view to
raising standards of living, ensuring full employment and a
large and steadily growing volume of real income and effective
demand, and expanding the production of and trade in goods
and services, while allowing for the optimal use of the worlds
resources in accordance with the objective of sustainable
development, seeking both to protect and preserve the
environment and to enhance the means for doing so in a
manner consistent with their respective needs and concerns at
different levels of economic development,
Recognizing further that there is need for positive efforts
designed to ensure that developing countries, and especially
the least developed among them, secure a share in the growth
in international trade commensurate with the needs of their
economic development,
Being desirous of contributing to these objectives by entering
into reciprocal and mutually advantageous arrangements
directed to the substantial reduction of tariffs and other
barriers to trade and to the elimination of discriminatory
treatment in international trade relations,
Resolved, therefore, to develop an integrated, more viable and
durable multilateral trading system encompassing the General
Agreement on Tariffs and Trade, the results of past trade
liberalization efforts, and all of the results of the Uruguay
Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the
objectives underlying this multilateral trading system, x x x.
(underscoring supplied.)
Specific WTO Provisos Protect Developing Countries
So too, the Solicitor General points out that pursuant to and
consistent with the foregoing basic principles, the WTO
Agreement grants developing countries a more lenient
treatment, giving their domestic industries some protection
from the rush of foreign competition. Thus, with respect to
tariffs in general, preferential treatment is given to developing
countries in terms of the amount of tariff reduction and the
period within which the reduction is to be spread out.
Specifically, GATT requires an average tariff reduction rate of
36% for developed countries to be effected within a period of
six (6) years while developing countries -- including the
Philippines -- are required to effect an average tariff reduction
of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed
countries to reduce domestic support to agricultural products
by 20% over six (6) years, as compared to only 13% for
developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT
requires developed countries to reduce their budgetary
outlays for export subsidy by 36% and export volumes
receiving export subsidy by 21% within a period of six (6) years.
For developing countries, however, the reduction rate is only
two-thirds of that prescribed for developed countries and a
longer period of ten (10) years within which to effect such
reduction.
Moreover, GATT itself has provided built-in protection from
unfair foreign competition and trade practices including anti-
dumping measures, countervailing measures and safeguards
against import surges. Where local businesses are jeopardized
by unfair foreign competition, the Philippines can avail of these
measures. There is hardly therefore any basis for the
statement that under the WTO, local industries and
enterprises will all be wiped out and that Filipinos will be
deprived of control of the economy. Quite the contrary, the
weaker situations of developing nations like the Philippines
have been taken into account; thus, there would be no basis to
say that in joining the WTO, the respondents have gravely
abused their discretion. True, they have made a bold decision
to steer the ship of state into the yet uncharted sea of
economic liberalization. But such decision cannot be set aside
on the ground of grave abuse of discretion, simply because we
disagree with it or simply because we believe only in other
economic policies. As earlier stated, the Court in taking
jurisdiction of this case will not pass upon the advantages and
disadvantages of trade liberalization as an economic policy. It
will only perform its constitutional duty of determining
whether the Senate committed grave abuse of discretion.
Constitution Does Not Rule Out Foreign Competition
Furthermore, the constitutional policy of a self-reliant and
independent national economy[35] 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.[36]
The WTO reliance on most favored nation, national treatment,
and trade without discrimination cannot be struck down as
unconstitutional as in fact they are rules of equality and
reciprocity that apply to all WTO members. Aside from
envisioning a trade policy based on equality and
reciprocity,[37] the fundamental law encourages industries
that are competitive in both domestic and foreign markets,
thereby demonstrating a clear policy against a sheltered
domestic trade environment, but one in favor of the gradual
development of robust industries that can compete with the
best in the foreign markets. Indeed, Filipino managers and
Filipino enterprises have shown capability and tenacity to
compete internationally. And given a free trade environment,
Filipino entrepreneurs and managers in Hongkong have
demonstrated the Filipino capacity to grow and to prosper
against the best offered under a policy of laissez faire.
Constitution Favors Consumers, Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in
favor of any business or enterprise, nor does it contain any
specific pronouncement that Filipino companies should be
pampered with a total proscription of foreign competition. On
the other hand, respondents claim that WTO/GATT aims to
make available to the Filipino consumer the best goods and
services obtainable anywhere in the world at the most
reasonable prices. Consequently, the question boils down to
whether WTO/GATT will favor the general welfare of the public
at large.
Will adherence to the WTO treaty bring this ideal (of favoring
the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos general
welfare because it will -- as promised by its promoters --
expand the countrys exports and generate more employment?
Will it bring more prosperity, employment, purchasing power
and quality products at the most reasonable rates to the
Filipino public?
The responses to these questions involve judgment calls by our
policy makers, for which they are answerable to our people
during appropriate electoral exercises. Such questions and the
answers thereto are not subject to judicial pronouncements
based on grave abuse of discretion.

Constitution Designed to Meet Future Events and
Contingencies
No doubt, the WTO Agreement was not yet in existence when
the Constitution was drafted and ratified in 1987. That does
not mean however that the Charter is necessarily flawed in the
sense that its framers might not have anticipated the advent
of a borderless world of business. By the same token, the
United Nations was not yet in existence when the 1935
Constitution became effective. Did that necessarily mean that
the then Constitution might not have contemplated a
diminution of the absoluteness of sovereignty when the
Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the
decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are
designed to meet not only the vagaries of contemporary
events. They should be interpreted to cover even future and
unknown circumstances. It is to the credit of its drafters that a
Constitution can withstand the assaults of bigots and infidels
but at the same time bend with the refreshing winds of change
necessitated by unfolding events. As one eminent political law
writer and respected jurist[38] explains:
The Constitution must be quintessential rather than
superficial, the root and not the blossom, the base and
framework only of the edifice that is yet to rise. It is but the
core of the dream that must take shape, not in a twinkling by
mandate of our delegates, but slowly in the crucible of Filipino
minds and hearts, where it will in time develop its sinews and
gradually gather its strength and finally achieve its substance.
In fine, the Constitution cannot, like the goddess Athena, rise
full-grown from the brow of the Constitutional Convention,
nor can it conjure by mere fiat an instant Utopia. It must grow
with the society it seeks to re-structure and march apace with
the progress of the race, drawing from the vicissitudes of
history the dynamism and vitality that will keep it, far from
becoming a petrified rule, a pulsing, living law attuned to the
heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that (e)ach Member shall
ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in
the annexed Agreements.[39] Petitioners maintain that this
undertaking unduly limits, restricts and impairs Philippine
sovereignty, specifically the legislative power which under Sec.
2, Article VI of the 1987 Philippine Constitution is vested in the
Congress of the Philippines. It is an assault on the sovereign
powers of the Philippines because this means that Congress
could not pass legislation that will be good for our national
interest and general welfare if such legislation will not conform
with the WTO Agreement, which not only relates to the trade
in goods x x x but also to the flow of investments and money x
x x as well as to a whole slew of agreements on socio-cultural
matters x x x.[40]
More specifically, petitioners claim that said WTO proviso
derogates from the power to tax, which is lodged in the
Congress.[41] And while the Constitution allows Congress to
authorize the President to fix tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or
imposts, such authority is subject to specified limits and x x x
such limitations and restrictions as Congress may provide,[42]
as in fact it did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by International Law and Treaties
This Court notes and appreciates the ferocity and passion by
which petitioners stressed their arguments on this issue.
However, while sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic level, it is
however subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly, as a
member of the family of nations. Unquestionably, the
Constitution did not envision a hermit-type isolation of the
country from the rest of the world. In its Declaration of
Principles and State Policies, the Constitution 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."[43]
By the doctrine of incorporation, the country is bound by
generally accepted principles of international law, which are
considered to be automatically part of our own laws.[44] One
of the oldest and most fundamental rules in international law
is pacta sunt servanda -- international agreements must be
performed in good faith. A treaty engagement is not a mere
moral obligation but creates a legally binding obligation on the
parties x x x. A state which has contracted valid international
obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of
the obligations undertaken.[45]
By their inherent nature, treaties really limit or restrict the
absoluteness of sovereignty. By their voluntary act, nations
may surrender some aspects of their state power in exchange
for greater benefits granted by or derived from a convention
or pact. After all, states, like individuals, live with coequals, and
in pursuit of mutually covenanted objectives and benefits, they
also commonly agree to limit the exercise of their otherwise
absolute rights. Thus, treaties have been used to record
agreements between States concerning such widely diverse
matters as, for example, the lease of naval bases, the sale or
cession of territory, the termination of war, the regulation of
conduct of hostilities, the formation of alliances, the regulation
of commercial relations, the settling of claims, the laying down
of rules governing conduct in peace and the establishment of
international organizations.[46] The sovereignty of a state
therefore cannot in fact and in reality be considered absolute.
Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of
nations and (2) limitations imposed by treaty stipulations. As
aptly put by John F. Kennedy, Today, no nation can build its
destiny alone. The age of self-sufficient nationalism is over.
The age of interdependence is here.[47]
UN Charter and Other Treaties Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of
its 51 charter members, it consented to restrict its sovereign
rights under the concept of sovereignty as auto-limitation.47-
A Under Article 2 of the UN Charter, (a)ll members shall give
the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from
giving assistance to any state against which the United Nations
is taking preventive or enforcement action. Such assistance
includes payment of its corresponding share not merely in
administrative expenses but also in expenditures for the
peace-keeping operations of the organization. In its advisory
opinion of July 20, 1961, the International Court of Justice held
that money used by the United Nations Emergency Force in the
Middle East and in the Congo were expenses of the United
Nations under Article 17, paragraph 2, of the UN Charter.
Hence, all its members must bear their corresponding share in
such expenses. In this sense, the Philippine Congress is
restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping
expenses or not. So too, under Article 105 of the said Charter,
the UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty
of members within their own territory. Another example:
although sovereign equality and domestic jurisdiction of all
members are set forth as underlying principles in the UN
Charter, such provisos are however subject to enforcement
measures decided by the Security Council for the maintenance
of international peace and security under Chapter VII of the
Charter. A final example: under Article 103, (i)n the event of a
conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under
any other international agreement, their obligation under the
present charter shall prevail, thus unquestionably denying the
Philippines -- as a member -- the sovereign power to make a
choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into
many other international pacts -- both bilateral and
multilateral -- that involve limitations on Philippine
sovereignty. These are enumerated by the Solicitor General in
his Compliance dated October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes
on income, where the Philippines agreed, among others, to
exempt from tax, income received in the Philippines by, among
others, the Federal Reserve Bank of the United States, the
Export/Import Bank of the United States, the Overseas Private
Investment Corporation of the United States. Likewise, in said
convention, wages, salaries and similar remunerations paid by
the United States to its citizens for labor and personal services
performed by them as employees or officials of the United
States are exempt from income tax by the Philippines.
(b) Bilateral agreement with Belgium, providing, among
others, for the avoidance of double taxation with respect to
taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the
avoidance of double taxation.
(d) Bilateral convention with the French Republic for the
avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the
Philippines agreed to exempt from all customs duties,
inspection fees and other duties or taxes aircrafts of South
Korea and the regular equipment, spare parts and supplies
arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the
Philippines agreed to exempt from customs duties, excise
taxes, inspection fees and other similar duties, taxes or charges
fuel, lubricating oils, spare parts, regular equipment, stores on
board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the
Philippines granted Belgian air carriers the same privileges as
those granted to Japanese and Korean air carriers under
separate air service agreements.
(h) Bilateral notes with Israel for the abolition of transit and
visitor visas where the Philippines exempted Israeli nationals
from the requirement of obtaining transit or visitor visas for a
sojourn in the Philippines not exceeding 59 days.
(I) Bilateral agreement with France exempting French nationals
from the requirement of obtaining transit and visitor visa for a
sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the
Philippines agreed that premises of Special Missions in the
Philippines are inviolable and its agents can not enter said
premises without consent of the Head of Mission concerned.
Special Missions are also exempted from customs duties, taxes
and related charges.
(k) Multilateral Convention on the Law of Treaties. In this
convention, the Philippines agreed to be governed by the
Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting
compulsory jurisdiction of the International Court of Justice.
The International Court of Justice has jurisdiction in all legal
disputes concerning the interpretation of a treaty, any
question of international law, the existence of any fact which,
if established, would constitute a breach of international
obligation.
In the foregoing treaties, the Philippines has effectively agreed
to limit the exercise of its sovereign powers of taxation,
eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the
reciprocal commitment of the other contracting states in
granting the same privilege and immunities to the Philippines,
its officials and its citizens. The same reciprocity characterizes
the Philippine commitments under WTO-GATT.
International treaties, whether relating to nuclear
disarmament, human rights, the environment, the law of the
sea, or trade, constrain domestic political sovereignty through
the assumption of external obligations. But unless anarchy in
international relations is preferred as an alternative, in most
cases we accept that the benefits of the reciprocal obligations
involved outweigh the costs associated with any loss of
political sovereignty. (T)rade treaties that structure relations
by reference to durable, well-defined substantive norms and
objective dispute resolution procedures reduce the risks of
larger countries exploiting raw economic power to bully
smaller countries, by subjecting power relations to some form
of legal ordering. In addition, smaller countries typically stand
to gain disproportionately from trade liberalization. This is due
to the simple fact that liberalization will provide access to a
larger set of potential new trading relationship than in case of
the larger country gaining enhanced success to the smaller
countrys market.[48]
The point is that, as shown by the foregoing treaties, a portion
of sovereignty may be waived without violating the
Constitution, based on the rationale 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 x x x
cooperation and amity with all nations.
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General
Provisions and Basic Principles of the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS)[49]
intrudes on the power of the Supreme Court to promulgate
rules concerning pleading, practice and procedures.[50]
To understand the scope and meaning of Article 34, TRIPS,[51]
it will be fruitful to restate its full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the
infringement of the rights of the owner referred to in
paragraph 1(b) of Article 28, if the subject matter of a patent is
a process for obtaining a product, the judicial authorities shall
have the authority to order the defendant to prove that the
process to obtain an identical product is different from the
patented process. Therefore, Members shall provide, in at
least one of the following circumstances, that any identical
product when produced without the consent of the patent
owner shall, in the absence of proof to the contrary, be
deemed to have been obtained by the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product
was made by the process and the owner of the patent has been
unable through reasonable efforts to determine the process
actually used.
2. Any Member shall be free to provide that the burden of
proof indicated in paragraph 1 shall be on the alleged infringer
only if the condition referred to in subparagraph (a) is fulfilled
or only if the condition referred to in subparagraph (b) is
fulfilled.
3. In the adduction of proof to the contrary, the legitimate
interests of defendants in protecting their manufacturing and
business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule
of disputable (note the words in the absence of proof to the
contrary) presumption that a product shown to be identical to
one produced with the use of a patented process shall be
deemed to have been obtained by the (illegal) use of the said
patented process, (1) where such product obtained by the
patented product is new, or (2) where there is substantial
likelihood that the identical product was made with the use of
the said patented process but the owner of the patent could
not determine the exact process used in obtaining such
identical product. Hence, the burden of proof contemplated by
Article 34 should actually be understood as the duty of the
alleged patent infringer to overthrow such presumption. Such
burden, properly understood, actually refers to the burden of
evidence (burden of going forward) placed on the producer of
the identical (or fake) product to show that his product was
produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the
burden of proof since, regardless of the presumption provided
under paragraph 1 of Article 34, such owner still has to
introduce evidence of the existence of the alleged identical
product, the fact that it is identical to the genuine one
produced by the patented process and the fact of newness of
the genuine product or the fact of substantial likelihood that
the identical product was made by the patented process.
The foregoing should really present no problem in changing
the rules of evidence as the present law on the subject,
Republic Act No. 165, as amended, otherwise known as the
Patent Law, provides a similar presumption in cases of
infringement of patented design or utility model, thus:
SEC. 60. Infringement. - Infringement of a design patent or of
a patent for utility model shall consist in unauthorized copying
of the patented design or utility model for the purpose of trade
or industry in the article or product and in the making, using or
selling of the article or product copying the patented design or
utility model. Identity or substantial identity with the patented
design or utility model shall constitute evidence of copying.
(underscoring supplied)
Moreover, it should be noted that the requirement of Article
34 to provide a disputable presumption applies only if (1) the
product obtained by the patented process is NEW or (2) there
is a substantial likelihood that the identical product was made
by the process and the process owner has not been able
through reasonable effort to determine the process used.
Where either of these two provisos does not obtain, members
shall be free to determine the appropriate method of
implementing the provisions of TRIPS within their own internal
systems and processes.
By and large, the arguments adduced in connection with our
disposition of the third issue -- derogation of legislative power
- will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any
actually exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due process and
the concept of adversarial dispute settlement inherent in our
judicial system.
So too, since the Philippine is a signatory to most international
conventions on patents, trademarks and copyrights, the
adjustment in legislation and rules of procedure will not be
substantial.[52]
Fifth Issue: Concurrence Only in the WTO Agreement and Not
in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO
Agreement and its annexes -- but not in the other documents
referred to in the Final Act, namely the Ministerial Declaration
and Decisions and the Understanding on Commitments in
Financial Services -- is defective and insufficient and thus
constitutes abuse of discretion. They submit that such
concurrence in the WTO Agreement alone is flawed because it
is in effect a rejection of the Final Act, which in turn was the
document signed by Secretary Navarro, in representation of
the Republic upon authority of the President. They contend
that the second letter of the President to the Senate[53] which
enumerated what constitutes the Final Act should have been
the subject of concurrence of the Senate.
A final act, sometimes called protocol de clture, is an
instrument which records the winding up of the proceedings
of a diplomatic conference and usually includes a reproduction
of the texts of treaties, conventions, recommendations and
other acts agreed upon and signed by the plenipotentiaries
attending the conference.[54] It is not the treaty itself. It is
rather a summary of the proceedings of a protracted
conference which may have taken place over several years.
The text of the Final Act Embodying the Results of the Uruguay
Round of Multilateral Trade Negotiations is contained in just
one page[55] in Vol. I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations. By signing said Final Act,
Secretary Navarro as representative of the Republic of the
Philippines undertook:
"(a) to submit, as appropriate, the WTO Agreement for the
consideration of their respective competent authorities with a
view to seeking approval of the Agreement in accordance with
their procedures; and
(b) to adopt the Ministerial Declarations and Decisions."
The assailed Senate Resolution No. 97 expressed concurrence
in exactly what the Final Act required from its signatories,
namely, concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed
adopted without need for ratification. They were approved by
the ministers by virtue of Article XXV: 1 of GATT which provides
that representatives of the members can meet to give effect
to those provisions of this Agreement which invoke joint
action, and generally with a view to facilitating the operation
and furthering the objectives of this Agreement.[56]
The Understanding on Commitments in Financial Services also
approved in Marrakesh does not apply to the Philippines. It
applies only to those 27 Members which have indicated in their
respective schedules of commitments on standstill,
elimination of monopoly, expansion of operation of existing
financial service suppliers, temporary entry of personnel, free
transfer and processing of information, and national treatment
with respect to access to payment, clearing systems and
refinancing available in the normal course of business.[57]
On the other hand, the WTO Agreement itself expresses what
multilateral agreements are deemed included as its integral
parts,[58] as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional framework
for the conduct of trade relations among its Members in
matters to the agreements and associated legal instruments
included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included
in Annexes 1, 2, and 3 (hereinafter referred to as Multilateral
Agreements) are integral parts of this Agreement, binding on
all Members.
3. The Agreements and associated legal instruments included
in Annex 4 (hereinafter referred to as Plurilateral Trade
Agreements) are also part of this Agreement for those
Members that have accepted them, and are binding on those
Members. The Plurilateral Trade Agreements do not create
either obligation or rights for Members that have not accepted
them.
4. The General Agreement on Tariffs and Trade 1994 as
specified in annex 1A (hereinafter referred to as GATT 1994) is
legally distinct from the General Agreement on Tariffs and
Trade, dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session of the
Preparatory Committee of the United Nations Conference on
Trade and Employment, as subsequently rectified, amended or
modified (hereinafter referred to as GATT 1947).
It should be added that the Senate was well-aware of what it
was concurring in as shown by the members deliberation on
August 25, 1994. After reading the letter of President Ramos
dated August 11, 1994,[59] the senators of the Republic
minutely dissected what the Senate was concurring in, as
follows: [60]
THE CHAIRMAN: Yes. Now, the question of the validity of the
submission came up in the first day hearing of this Committee
yesterday. Was the observation made by Senator Taada that
what was submitted to the Senate was not the agreement on
establishing the World Trade Organization by the final act of
the Uruguay Round which is not the same as the agreement
establishing the World Trade Organization? And on that basis,
Senator Tolentino raised a point of order which, however, he
agreed to withdraw upon understanding that his suggestion
for an alternative solution at that time was acceptable. That
suggestion was to treat the proceedings of the Committee as
being in the nature of briefings for Senators until the question
of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting
a new... is he making a new submission which improves on the
clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut
and there should be no misunderstanding, it was his intention
to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Taada and later on
Senator Tolentino since they were the ones that raised this
question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now
clearly appear that what is being submitted to the Senate for
ratification is not the Final Act of the Uruguay Round, but
rather the Agreement on the World Trade Organization as well
as the Ministerial Declarations and Decisions, and the
Understanding and Commitments in Financial Services.
I am now satisfied with the wording of the new submission of
President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from
Senator Tolentino? And after him Senator Neptali Gonzales
and Senator Lina.
SEN TOLENTINO, Mr. Chairman, I have not seen the new
submission actually transmitted to us but I saw the draft of his
earlier, and I think it now complies with the provisions of the
Constitution, and with the Final Act itself. The Constitution
does not require us to ratify the Final Act. It requires us to ratify
the Agreement which is now being submitted. The Final Act
itself specifies what is going to be submitted to with the
governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a)
to submit as appropriate the WTO Agreement for the
consideration of the respective competent authorities with a
view to seeking approval of the Agreement in accordance with
their procedures.
In other words, it is not the Final Act that was agreed to be
submitted to the governments for ratification or acceptance as
whatever their constitutional procedures may provide but it is
the World Trade Organization Agreement. And if that is the
one that is being submitted now, I think it satisfies both the
Constitution and the Final Act itself.
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on
Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are
already a matter of record. And they had been adequately
reflected in the journal of yesterdays session and I dont see
any need for repeating the same.
Now, I would consider the new submission as an act ex
abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina,
do you want to make any comment on this?
SEN. LINA. Mr. President, I agree with the observation just
made by Senator Gonzales out of the abundance of question.
Then the new submission is, I believe, stating the obvious and
therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of
the WTO Agreement, petitioners are invoking this Courts
constitutionally imposed duty to determine whether or not
there has been grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the Senate in giving its
concurrence therein via Senate Resolution No. 97.
Procedurally, a writ of certiorari grounded on grave abuse of
discretion may be issued by the Court under Rule 65 of the
Rules of Court when it is amply shown that petitioners have no
other plain, speedy and adequate remedy in the ordinary
course of law.
By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction.[61] Mere abuse of discretion is not enough. It
must be grave abuse of discretion as when the power is
exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and must be so patent and so
gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[62] Failure on the part of the petitioner
to show grave abuse of discretion will result in the dismissal of
the petition.[63]
In rendering this Decision, this Court never forgets that the
Senate, whose act is under review, is one of two sovereign
houses of Congress and is thus entitled to great respect in its
actions. It is itself a constitutional body independent and
coordinate, and thus its actions are presumed regular and
done in good faith. Unless convincing proof and persuasive
arguments are presented to overthrow such presumptions,
this Court will resolve every doubt in its favor. Using the
foregoing well-accepted definition of grave abuse of discretion
and the presumption of regularity in the Senates processes,
this Court cannot find any cogent reason to impute grave
abuse of discretion to the Senates exercise of its power of
concurrence in the WTO Agreement granted it by Sec. 21 of
Article VII of the Constitution.[64]
It is true, as alleged by petitioners, that broad constitutional
principles require the State to develop an independent
national economy effectively controlled by Filipinos; and to
protect and/or prefer Filipino labor, products, domestic
materials and locally produced goods. But it is equally true that
such principles -- while serving as judicial and legislative guides
-- are not in themselves sources of causes of action. Moreover,
there are other equally fundamental constitutional principles
relied upon by the Senate which mandate the pursuit of a trade
policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and
reciprocity and the promotion of industries which are
competitive in both domestic and foreign markets, thereby
justifying its acceptance of said treaty. So too, the alleged
impairment of sovereignty in the exercise of legislative and
judicial powers is balanced by the adoption of the generally
accepted principles of international law as part of the law of
the land and the adherence of the Constitution to the policy of
cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement
thereby making it a part of the law of the land is a legitimate
exercise of its sovereign duty and power. We find no patent
and gross arbitrariness or despotism by reason of passion or
personal hostility in such exercise. It is not impossible to
surmise that this Court, or at least some of its members, may
even agree with petitioners that it is more advantageous to the
national interest to strike down Senate Resolution No. 97. But
that is not a legal reason to attribute grave abuse of discretion
to the Senate and to nullify its decision. To do so would
constitute grave abuse in the exercise of our own judicial
power and duty. Ineludably, what the Senate did was a valid
exercise of its authority. As to whether such exercise was wise,
beneficial or viable is outside the realm of judicial inquiry and
review. That is a matter between the elected policy makers
and the people. As to whether the nation should join the
worldwide march toward trade liberalization and economic
globalization is a matter that our people should determine in
electing their policy makers. After all, the WTO Agreement
allows withdrawal of membership, should this be the political
desire of a member.
The eminent futurist John Naisbitt, author of the best seller
Megatrends, predicts an Asian Renaissance[65] where the East
will become the dominant region of the world economically,
politically and culturally in the next century. He refers to the
free market espoused by WTO as the catalyst in this coming
Asian ascendancy. There are at present about 31 countries
including China, Russia and Saudi Arabia negotiating for
membership in the WTO. Notwithstanding objections against
possible limitations on national sovereignty, the WTO remains
as the only viable structure for multilateral trading and the
veritable forum for the development of international trade
law. The alternative to WTO is isolation, stagnation, if not
economic self-destruction. Duly enriched with original
membership, keenly aware of the advantages and
disadvantages of globalization with its on-line experience, and
endowed with a vision of the future, the Philippines now
straddles the crossroads of an international strategy for
economic prosperity and stability in the new millennium. Let
the people, through their duly authorized elected officers,
make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions
and/or for review of the Decision of the Court of Appeals in
Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et
al., in CA-G.R. SP No. 97212, dated January 2, 2007.
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member
of the United States Armed Forces. He was charged with the
crime of rape committed against a Filipina, petitioner herein,
sometime on November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian
Carpentier, Dominic Duplantis, Keith Silkwood and Timoteo L.
Soriano, Jr. of the crime of Rape under Article 266-A of the
Revised Penal Code, as amended by Republic Act 8353, upon a
complaint under oath filed by Suzette S. Nicolas, which is
attached hereto and made an integral part hereof as Annex A,
committed as follows:
That on or about the First (1st) day of November 2005, inside
the Subic Bay Freeport Zone, Olongapo City and within the
jurisdiction of this Honorable Court, the above-named
accuseds (sic), being then members of the United States
Marine Corps, except Timoteo L. Soriano, Jr., conspiring,
confederating together and mutually helping one another,
with lewd design and by means of force, threat and
intimidation, with abuse of superior strength and taking
advantage of the intoxication of the victim, did then and there
willfully, unlawfully and feloniously sexually abuse and have
sexual intercourse with or carnal knowledge of one Suzette S.
Nicolas, a 22-year old unmarried woman inside a Starex Van
with Plate No. WKF-162, owned by Starways Travel and Tours,
with Office address at 8900 P. Victor St., Guadalupe, Makati
City, and driven by accused Timoteo L. Soriano, Jr., against the
will and consent of the said Suzette S. Nicolas, to her damage
and prejudice.
CONTRARY TO LAW.[1]
Pursuant to the Visiting Forces Agreement (VFA) between the
Republic of the Philippines and the United States, entered into
on February 10, 1998, the United States, at its request, was
granted custody of defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial
Court (RTC) of Zambales to the RTC of Makati for security
reasons, the United States Government faithfully complied
with its undertaking to bring defendant Smith to the trial court
every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of
the trial, rendered its Decision, finding defendant Smith guilty,
thus:
WHEREFORE, premises considered, for failure of the
prosecution to adduce sufficient evidence against accused
S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND
L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps
assigned at the USS Essex, are hereby ACQUITTED to the crime
charged.
The prosecution having presented sufficient evidence against
accused L/CPL. DANIEL J. SMITH, also of the US Marine Corps
at the USS Essex, this Court hereby finds him GUILTY BEYOND
REASONABLE DOUBT of the crime of RAPE defined under
Article 266-A, paragraph 1 (a) of the Revised Penal Code, as
amended by R.A. 8353, and, in accordance with Article 266-B,
first paragraph thereof, hereby sentences him to suffer the
penalty of reclusion perpetua together with the accessory
penalties provided for under Article 41 of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces
Agreement entered into by the Philippines and the United
States, accused L/CPL. DANIEL J. SMITH shall serve his sentence
in the facilities that shall, thereafter, be agreed upon by
appropriate Philippine and United States authorities. Pending
agreement on such facilities, accused L/CPL. DANIEL J. SMITH
is hereby temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to
indemnify complainant SUZETTE S. NICOLAS in the amount of
P50,000.00 as compensatory damages plus P50,000.00 as
moral damages.
SO ORDERED.[2]
As a result, the Makati court ordered Smith detained at the
Makati jail until further orders.
On December 29, 2006, however, defendant Smith was taken
out of the Makati jail by a contingent of Philippine law
enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and
brought to a facility for detention under the control of the
United States government, provided for under new
agreements between the Philippines and the United States,
referred to as the Romulo-Kenney Agreement of December 19,
2006 which states:
The Government of the Republic of the Philippines and the
Government of the United States of America agree that, in
accordance with the Visiting Forces Agreement signed
between our two nations, Lance Corporal Daniel J. Smith,
United States Marine Corps, be returned to U.S. military
custody at the U.S. Embassy in Manila.
(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO G. ROMULO
Representative of the United States Representative of the
Republic
of America of the Philippines
DATE: 12-19-06 DATE: December 19, 2006__
and the Romulo-Kenney Agreement of December 22, 2006
which states:
The Department of Foreign Affairs of the Republic of the
Philippines and the Embassy of the United States of America
agree that, in accordance with the Visiting Forces Agreement
signed between the two nations, upon transfer of Lance
Corporal Daniel J. Smith, United States Marine Corps, from the
Makati City Jail, he will be detained at the first floor, Rowe
(JUSMAG) Building, U.S. Embassy Compound in a room of
approximately 10 x 12 square feet. He will be guarded round
the clock by U.S. military personnel. The Philippine police and
jail authorities, under the direct supervision of the Philippine
Department of Interior and Local Government (DILG) will have
access to the place of detention to ensure the United States is
in compliance with the terms of the VFA.
The matter was brought before the Court of Appeals which
decided on January 2, 2007, as follows:
WHEREFORE, all the foregoing considered, we resolved to
DISMISS the petition for having become moot.[3]
Hence, the present actions.
The petitions were heard on oral arguments on September 19,
2008, after which the parties submitted their memoranda.
Petitioners contend that the Philippines should have custody
of defendant L/CPL Smith because, first of all, the VFA is void
and unconstitutional.
This issue had been raised before, and this Court resolved in
favor of the constitutionality of the VFA. This was in Bayan v.
Zamora,[4] brought by Bayan, one of petitioners in the present
cases.
Against the barriers of res judicata vis--vis Bayan, and stare
decisis vis--vis all the parties, the reversal of the previous ruling
is sought on the ground that the issue is of primordial
importance, involving the sovereignty of the Republic, as well
as a specific mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which
states:
Sec. 25. After the expiration in 1991 of the Agreement
between the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
The reason for this provision lies in history and the Philippine
experience in regard to the United States military bases in the
country.
It will be recalled that under the Philippine Bill of 1902, which
laid the basis for the Philippine Commonwealth and,
eventually, for the recognition of independence, the United
States agreed to cede to the Philippines all the territory it
acquired from Spain under the Treaty of Paris, plus a few
islands later added to its realm, except certain naval ports
and/or military bases and facilities, which the United States
retained for itself.
This is noteworthy, because what this means is that Clark and
Subic and the other places in the Philippines covered by the
RP-US Military Bases Agreement of 1947 were not Philippine
territory, as they were excluded from the cession and retained
by the US.
Accordingly, the Philippines had no jurisdiction over these
bases except to the extent allowed by the United States.
Furthermore, the RP-US Military Bases Agreement was never
advised for ratification by the United States Senate, a disparity
in treatment, because the Philippines regarded it as a treaty
and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these
bases to the Philippines; and with the expiration of the RP-US
Military Bases Agreement in 1991, the territory covered by
these bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in
question was adopted in the 1987 Constitution.
The provision is thus designed to ensure that any agreement
allowing the presence of foreign military bases, troops or
facilities in Philippine territory shall be equally binding on the
Philippines and the foreign sovereign State involved. The idea
is to prevent a recurrence of the situation in which the terms
and conditions governing the presence of foreign armed forces
in our territory were binding upon us but not upon the foreign
State.
Applying the provision to the situation involved in these cases,
the question is whether or not the presence of US Armed
Forces in Philippine territory pursuant to the VFA is allowed
under a treaty duly concurred in by the Senate xxx and
recognized as a treaty by the other contracting State.
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,[5] the VFA was duly
concurred in by the Philippine Senate and has been recognized
as a treaty by the United States as attested and certified by the
duly authorized representative of the United States
government.
The fact that the VFA was not submitted for advice and
consent of the United States Senate does not detract from its
status as a binding international agreement or treaty
recognized by the said State. For this is a matter of internal
United States law. Notice can be taken of the internationally
known practice by the United States of submitting to its Senate
for advice and consent agreements that are policymaking in
nature, whereas those that carry out or further implement
these policymaking agreements are merely submitted to
Congress, under the provisions of the so-called CaseZablocki
Act, within sixty days from ratification.[6]

The second reason has to do with the relation between the
VFA and the RP-US Mutual Defense Treaty of August 30, 1951.
This earlier agreement was signed and duly ratified with the
concurrence of both the Philippine Senate and the United
States Senate.
The RP-US Mutual Defense Treaty states:[7]
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE
PHILIPPINES AND THE UNITED STATES OF AMERICA. Signed at
Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the
Charter of the United Nations and their desire to live in peace
with all peoples and all governments, and desiring to
strengthen the fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which
brought their two peoples together in a common bond of
sympathy and mutual ideals to fight side-by-side against
imperialist aggression during the last war.
Desiring to declare publicly and formally their sense of unity
and their common determination to defend themselves
against external armed attack, so that no potential aggressor
could be under the illusion that either of them stands alone in
the Pacific area.
Desiring further to strengthen their present efforts for
collective defense for the preservation of peace and security
pending the development of a more comprehensive system of
regional security in the Pacific area.
Agreeing that nothing in this present instrument shall be
considered or interpreted as in any way or sense altering or
diminishing any existing agreements or understandings
between the Republic of the Philippines and the United States
of America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set forth in the Charter of
the United Nations, to settle any international disputes in
which they may be involved by peaceful means in such a
manner that international peace and security and justice are
not endangered and to refrain in their international relation
from the threat or use of force in any manner inconsistent with
the purposes of the United Nations.
ARTICLE II. In order more effectively to achieve the objective
of this Treaty, the Parties separately and jointly by self-help
and mutual aid will maintain and develop their individual and
collective capacity to resist armed attack.
ARTICLE III. The Parties, through their Foreign Ministers or
their deputies, will consult together from time to time
regarding the implementation of this Treaty and whenever in
the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened
by external armed attack in the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack in the
Pacific area on either of the parties would be dangerous to its
own peace and safety and declares that it would act to meet
the common dangers in accordance with its constitutional
processes.
Any such armed attack and all measures taken as a result
thereof shall be immediately reported to the Security Council
of the United Nations. Such measures shall be terminated
when the Security Council has taken the measures necessary
to restore and maintain international peace and security.
ARTICLE V. For the purpose of Article IV, an armed attack on
either of the Parties is deemed to include an armed attack on
the metropolitan territory of either of the Parties, or on the
island territories under its jurisdiction in the Pacific Ocean, its
armed forces, public vessels or aircraft in the Pacific.
ARTICLE VI. This Treaty does not affect and shall not be
interpreted as affecting in any way the rights and obligations
of the Parties under the Charter of the United Nations or the
responsibility of the United Nations for the maintenance of
international peace and security.
ARTICLE VII. This Treaty shall be ratified by the Republic of the
Philippines and the United Nations of America in accordance
with their respective constitutional processes and will come
into force when instruments of ratification thereof have been
exchanged by them at Manila.
ARTICLE VIII. This Treaty shall remain in force indefinitely.
Either Party may terminate it one year after notice has been
given to the other party.
IN WITHNESS WHEREOF the undersigned Plenipotentiaries
have signed this Treaty.
DONE in duplicate at Washington this thirtieth day of August,
1951.
For the Republic of the Philippines:
(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL
For the United States of America:
(Sgd.) DEAN ACHESON
(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY[8]
Clearly, therefore, joint RP-US military exercises for the
purpose of developing the capability to resist an armed attack
fall squarely under the provisions of the RP-US Mutual Defense
Treaty. The VFA, which is the instrument agreed upon to
provide for the joint RP-US military exercises, is simply an
implementing agreement to the main RP-US Military Defense
Treaty. The Preamble of the VFA states:
The Government of the United States of America and the
Government of the Republic of the Philippines,
Reaffirming their faith in the purposes and principles of the
Charter of the United Nations and their desire to strengthen
international and regional security in the Pacific area;
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;
Recognizing the desirability of defining the treatment of
United States personnel visiting the Republic of the
Philippines;
Have agreed as follows:[9]
Accordingly, as an implementing agreement of the RP-US
Mutual Defense Treaty, it was not necessary to submit the VFA
to the US Senate for advice and consent, but merely to the US
Congress under the CaseZablocki Act within 60 days of its
ratification. It is for this reason that the US has certified that it
recognizes the VFA as a binding international agreement, i.e.,
a treaty, and this substantially complies with the requirements
of Art. XVIII, Sec. 25 of our Constitution.[10]
The provision of Art. XVIII, Sec. 25 of the Constitution, is
complied with by virtue of the fact that the presence of the US
Armed Forces through the VFA is a presence allowed under the
RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense
Treaty itself has been ratified and concurred in by both the
Philippine Senate and the US Senate, there is no violation of
the Constitutional provision resulting from such presence.
The VFA being a valid and binding agreement, the parties are
required as a matter of international law to abide by its terms
and provisions.
The VFA provides that in cases of offenses committed by the
members of the US Armed Forces in the Philippines, the
following rules apply:
Article V
Criminal Jurisdiction
xxx
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.
Petitioners contend that these undertakings violate another
provision of the Constitution, namely, that providing for the
exclusive power of this Court to adopt rules of procedure for
all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that
to allow the transfer of custody of an accused to a foreign
power is to provide for a different rule of procedure for that
accused, which also violates the equal protection clause of the
Constitution (Art. III, Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a
substantial basis for a different treatment of a member of a
foreign military armed forces allowed to enter our territory
and all other accused.[11]
The rule in international law is that a foreign armed forces
allowed to enter ones territory is immune from local
jurisdiction, except to the extent agreed upon. The Status of
Forces Agreements involving foreign military units around the
world vary in terms and conditions, according to the situation
of the parties involved, and reflect their bargaining power. But
the principle remains, i.e., the receiving State can exercise
jurisdiction over the forces of the sending State only to the
extent agreed upon by the parties.[12]
As a result, the situation involved is not one in which the power
of this Court to adopt rules of procedure is curtailed or
violated, but rather one in which, as is normally encountered
around the world, the laws (including rules of procedure) of
one State do not extend or apply except to the extent agreed
upon to subjects of another State due to the recognition of
extraterritorial immunity given to such bodies as visiting
foreign armed forces.
Nothing in the Constitution prohibits such agreements
recognizing immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and
members of the armed forces contingents of a foreign State
allowed to enter another States territory. On the contrary, the
Constitution states that the Philippines adopts the generally
accepted principles of international law as part of the law of
the land. (Art. II, Sec. 2).
Applying, however, the provisions of VFA, the Court finds that
there is a different treatment when it comes to detention as
against custody. The moment the accused has to be detained,
e.g., after conviction, the rule that governs is the following
provision of the VFA:
Article V
Criminal Jurisdiction
xxx
Sec. 10. The confinement or detention by Philippine
authorities of United States personnel shall be carried out in
facilities agreed on by appropriate Philippines and United
States authorities. United States personnel serving sentences
in the Philippines shall have the right to visits and material
assistance.
It is clear that the parties to the VFA recognized the difference
between custody during the trial and detention after
conviction, because they provided for a specific arrangement
to cover detention. And this specific arrangement clearly
states not only that the detention shall be carried out in
facilities agreed on by authorities of both parties, but also that
the detention shall be by Philippine authorities. Therefore, the
Romulo-Kenney Agreements of December 19 and 22, 2006,
which are agreements on the detention of the accused in the
United States Embassy, are not in accord with the VFA itself
because such detention is not by Philippine authorities.
Respondents should therefore comply with the VFA and
negotiate with representatives of the United States towards an
agreement on detention facilities under Philippine authorities
as mandated by Art. V, Sec. 10 of the VFA.
Next, the Court addresses the recent decision of the United
States Supreme Court in Medellin v. Texas ( 552 US ___ No. 06-
984, March 25, 2008), which held that treaties entered into by
the United States are not automatically part of their domestic
law unless these treaties are self-executing or there is an
implementing legislation to make them enforceable.
On February 3, 2009, the Court issued a Resolution, thus:
G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto
Romulo, et al.); G.R. No. 176051 (Jovito R. Salonga, et al. v.
Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang
Makabayan [BAYAN], et al. v. President Gloria Macapagal-
Arroyo, et al.).
The parties, including the Solicitor General, are required to
submit within three (3) days a Comment/Manifestation on the
following points:
1. What is the implication on the RP-US Visiting Forces
Agreement of the recent US Supreme Court decision in Jose
Ernesto Medellin v. Texas, dated March 25, 2008, to the effect
that treaty stipulations that are not self-executory can only be
enforced pursuant to legislation to carry them into effect; and
that, while treaties may comprise international commitments,
they are not domestic law unless Congress has enacted
implementing statutes or the treaty itself conveys an intention
that it be self-executory and is ratified on these terms?
2. Whether the VFA is enforceable in the US as
domestic law, either because it is self-executory or because
there exists legislation to implement it.
3. Whether the RP-US Mutual Defense Treaty of
August 30, 1951 was concurred in by the US Senate and, if so,
is there proof of the US Senate advice and consent resolution?
Peralta, J., no part.
After deliberation, the Court holds, on these points, as follows:
First, the VFA is a self-executing Agreement, as that term is
defined in Medellin itself, because the parties intend its
provisions to be enforceable, precisely because the Agreement
is intended to carry out obligations and undertakings under the
RP-US Mutual Defense Treaty. As a matter of fact, the VFA has
been implemented and executed, with the US faithfully
complying with its obligation to produce L/CPL Smith before
the court during the trial.
Secondly, the VFA is covered by implementing legislation,
namely, the Case-Zablocki Act, USC Sec. 112(b), inasmuch as it
is the very purpose and intent of the US Congress that
executive agreements registered under this Act within 60 days
from their ratification be immediately implemented. The
parties to these present cases do not question the fact that the
VFA has been registered under the Case-Zablocki Act.
In sum, therefore, the VFA differs from the Vienna Convention
on Consular Relations and the Avena decision of the
International Court of Justice (ICJ), subject matter of the
Medellin decision. The Convention and the ICJ decision are not
self-executing and are not registrable under the Case-Zablocki
Act, and thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and
consented to by the US Senate on March 20, 1952, as reflected
in the US Congressional Record, 82nd Congress, Second December 19 and 22, 2006 are DECLARED not in accordance
Session, Vol. 98 Part 2, pp. 2594-2595. with the VFA, and respondent Secretary of Foreign Affairs is
hereby ordered to forthwith negotiate with the United States
The framers of the Constitution were aware that the representatives for the appropriate agreement on detention
application of international law in domestic courts varies from facilities under Philippine authorities as provided in Art. V, Sec.
country to country. 10 of the VFA, pending which the status quo shall be
maintained until further orders by this Court.
As Ward N. Ferdinandusse states in his Treatise, DIRECT
APPLICATION OF INTERNATIONAL CRIMINAL LAW IN The Court of Appeals is hereby directed to resolve without
NATIONAL COURTS, some countries require legislation delay the related matters pending therein, namely, the
whereas others do not. petition for contempt and the appeal of L/CPL Daniel Smith
from the judgment of conviction
It was not the intention of the framers of the 1987
Constitution, in adopting Article XVIII, Sec. 25, to require the
other contracting State to convert their system to achieve
alignment and parity with ours. It was simply required that the
treaty be recognized as a treaty by the other contracting State.
With that, it becomes for both parties a binding international
obligation and the enforcement of that obligation is left to the
normal recourse and processes under international law.

Furthermore, as held by the US Supreme Court in Weinberger

v. Rossi,[13] an executive agreement is a treaty within the
meaning of that word in international law and constitutes
enforceable domestic law vis--vis the United States. Thus, the
US Supreme Court in Weinberger enforced the provisions of
the executive agreement granting preferential employment to
Filipinos in the US Bases here.

Accordingly, there are three types of treaties in the American

system:

1. Art. II, Sec. 2 treaties These are advised and

consented to by the US Senate in accordance with Art. II, Sec.
2 of the US Constitution.

2. ExecutiveCongressional Agreements: These are joint

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

3. Sole Executive Agreements. These are agreements

entered into by the President. They are to be submitted to
Congress within sixty (60) days of ratification under the
provisions of the Case-Zablocki Act, after which they are
recognized by the Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense

Treaty, military aid or assistance has been given under it and
this can only be done through implementing legislation. The
VFA itself is another form of implementation of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the

Court of Appeals Decision in CA-G.R. SP No. 97212 dated
January 2, 2007 is MODIFIED. The Visiting Forces Agreement
(VFA) between the Republic of the Philippines and the United
States, entered into on February 10, 1998, is UPHELD as
constitutional, but the Romulo-Kenney Agreements of